An employment tribunal has awarded a postman PS3,000 for unfair dismissal after a finding that he had been unfairly dismissed from Royal Mail because he worked a second job, as a cab driver, while on sick leave.
The Glasgow tribunal found Royal Mail had not conducted a reasonable investigation of Mr Weston’s actions. This was in an instance that concerned whether or not his fit note prevented him from working in his postman role, as well as the appointment a key witness for Weston’s conduct.
Although he found that he had been unfairly dismissed, Employment Judge Murphy reduced the amount of his compensation. The panel found the conduct he committed “significant and culpable”, because he made money by collecting taxi fares when he worked for Royal Mail but was also receiving sick pay.
Weston was employed by Royal Mail at the Inverclyde Delivery Office from 2007 to his dismissal in 2023. He delivered parcels and letters on foot. In a single shift, he could walk up to 10 miles.
He filed a complaint in 2021 against two managers including Mr Corrigan who was the manager of the delivery office, alleging discrimination based on sexual orientation. The tribunal found that the mediation was not entirely successful, and the relationship continued to be strained.
Sick Leave
Weston was injured in a work accident in February of 2022. His hip was damaged. He was on sick-leave until May, when he returned to full duty. Between May and November he worked as a self-employed taxi driver in addition to his Royal Mail shifts. It was known to his managers.
The tribunal determined that there was no explicit term in the contract or policy that required him to seek permission or disclose to anyone else if he wanted to work outside his contracted hours. Royal Mail drivers, which Weston wasn’t, were only required to keep track of the hours they spent driving outside work to comply with rules regarding drivers’ rest breaks and hours.
The claimant’s hip became worse between November 2022 and January 2023. He was placed on “light duty” at the delivery office. His request for light duty was denied when it flared again in February. He was on sick leave.
Weston was to resume his duties one month later, on 23 March. However, after a report by the occupational health department recommended that he remain indoors until an MRI scan was completed, this decision was revoked. He was still on sick leave.
Light duties unavailable
He met with Mr Dunn in April 2023 along with his union representative. The meeting revealed that he had not progressed with his MRI and that no light duty was available.
Dunn also asked him the same month if he drove his taxi. Weston replied that he wasn’t, but in the future he could return to driving. Dunn asked Weston if it was automatic or manual, and Weston responded that it was manual.
Dunn told the tribunal that he would “check” with HR, but he did not specify what he intended to check. Dunn did not follow up with Weston about this, and he never raised the issue of taxi-driving with him again.
A OH assessment in May 2023 found Weston unfit for employment due to “ongoing, severe anxiety and depression symptoms that impact his daily life”.
In the months that followed, Weston’s GP wrote in his fit notes that he was not fit due to hip and stress pain.
On 12 June 2023, he began driving his taxi for commercial gain again. Dunn did not respond to his calls that day when he tried to tell him about his plans to resume taxi driving. Weston did not contact Dunn again by phone, text or email, nor did he reach out to any manager or HR.
The hours he spent driving his taxi commercially often overlapped with the hours he had contracted to work for Royal Mail if he were fit. He was receiving half pay at the time.
Where did you catch me?”
Three days later, Weston, who was on sick leave at the time, was spotted by two managers including Mr Corrigan from the delivery office, driving his taxi in a local rank. One of them took a picture.
Corrigan called Weston on 15 June 2023 and said he “caught” him taxiing, or something to that effect. The court heard that Weston didn’t deny it and that he used no foul language. In response, he asked: “Where were you able to catch me?”
“The appointment of [Corrigan] as the sole witness to the investigation of the contested nature was flawed.” – Judgement
Weston sent Corrigan another text later that day saying: “DONT PHONE ME, IF YOU WANT TO SPEAK WITH ME, SEND A NOTE”.
Corrigan led an investigation the next day into Weston’s conduct, including allegations of abusive language and aggression.
Weston was fired on 16 September 2023, based on the following three allegations: he had lied to his manager about his ability to work, he’d been aggressive and abusive, and he’d been unnecessarily away from work. An appeal filed against Weston’s dismissal was denied.
Investigations biased
The tribunal found that Royal Mail had not conducted a reasonable investigation, and its response fell outside of the reasonable range because Corrigan’s job was to investigate Weston’s conduct in the telephone call between them.
The judgement stated: “The appointment [of Corrigan] to examine the contested nature, for which he was only witness, was flawed.” Irrespective the history of problems between the two, [Corrigan] could not (and didn’t) inquire into the facts in an unbiased and balanced manner.
Royal Mail failed to conduct an adequate investigation to determine the specificity of the abusive words or other behavior complained of, and omitted to “put properly specified allegations” in Weston’s case. The investigation also failed to fairly and impartially investigate Weston’s version of the phone call, as well as both the claimant and his union representative’s accounts of the meeting that followed.
The tribunal determined that Royal Mail’s allegations of dishonesty had been underpinned by the assumption that Weston was unfit to do “any work”, and not only unfit to perform his contract duties with respondent. It assumed, in the same way, that Weston’s ability to drive a cab professionally was an accurate indicator of his suitability to perform his duties with Royal Mail.
Royal Mail’s refusal to conduct investigations with Weston’s GP and/or their OH advisor was also unreasonable. They were testing assumptions they made about his taxi driving. Royal Mail was wrong to assume that the statements made by the medical professionals were related to any work without checking this assumption.
Unfair dismissal
The tribunal found that Weston was dismissed unfairly. He was found guilty, however, for not seeking medical advice about the risks of driving a cab and, even more serious, because he had worked when he held a Royal Mail contract.
The court ruled that “whether [Weston] was aware of the inappropriateness, or whether he blatantly ignored its implications in his taxi schedule, the conduct was significant” and “culpable”.
We believe that, after considering all factors, it would be fair and just to reduce the award by half in recognition of pre-dismissal misconduct.
The panel determined that, after considering all factors, there was a 60% probability that Weston would have been fired fairly. They reduced his compensation award accordingly.
Weston’s total award of compensation and basic salary was fixed at PS3,010. His claims of harassment related to his disability, victimisation, and wrongful dismissal have all been dismissed.
Subscribe to our weekly HR news and guidance
Every Wednesday, receive the Personnel Today Direct newsletter.
Personnel Today offers HR business partners opportunities
Browse other HR Business Partner Jobs
