Nugent vs Royal Mail Group Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 17 December 2015 |
| Docket Number | 02762/14IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Royal Mail Group Limited |
THE INDUSTRIAL TRIBUNALS
CASE REF: 2762/14
CLAIMANT: Adrian Gerard Nugent
RESPONDENT: Royal Mail Group Limited
DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge D Buchanan
Members: Professor D Boyd
Mr B McAnoy
Appearances:
The claimant was represented by Mr P Ferrity, Barrister-at-Law, instructed by Gus Campbell, Solicitors.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Carson McDowell LLP, Solicitors.
1(i) The claimant, Mr Adrian Nugent, was employed as a postman by the respondent, Royal Mail Group Limited, from 14 October 1998 until 24 September 2014. On that latter date he was dismissed for alleged gross misconduct. This followed his involvement in a road traffic accident, which took place on 5 July 2014, when he was driving one of the respondent’s delivery vans in a rural area of Armagh.
(ii) The reasons for the claimant’s dismissal were that the respondent’s managers believed that he had not been wearing his seat belt at the time of the accident, and that his driving was at fault on the occasion in question.
(iii) The claimant had previously been dismissed by the respondent on 10 June 2011, but was reinstated following an Order of an industrial tribunal in successful unfair dismissal proceedings which he had subsequently brought. That dismissal also followed a road traffic accident in which he had been involved. On that occasion the accident had been more serious, and the claimant had also not been wearing a seat belt.
2(i) On 10 December 2014 he presented a claim of unfair dismissal in relation to his sacking on 24 October 2014. He made various complaints of unfairness, including alleged disparity of treatment with fellow employees who had also been caught not wearing seat belts and who were not dismissed, an allegation that the investigation into his alleged misconduct had not been reasonable, an allegation that this was ‘payback’ time as far as the respondent’s managers were concerned (they wanted rid of him because he had succeeded in his previous unfair dismissal claim), and a complaint that the sanction imposed – dismissal – was unreasonable and disproportionate in the circumstances, having regard to the claimant’s length of service, his good work record, and the treatment afforded to other drivers.
(ii) In order to determine this matter, the tribunal heard evidence from the claimant, Mr Nugent, and from the following witnesses on behalf of the respondent:-
Mr Jack Harris, Assistant Delivery Office Manager, Portadown;
Mr Eamar O’Hagan, a senior manager with responsibility for the Armagh area; and
Mr Pat Latimer, who fulfilled the role of an Appeals Casework Manager on a permanent basis. (Mr Latimer had heard, and rejected, the claimant’s previous internal appeal against his dismissal in 2011.)
(iii) The tribunal finds the facts set out in the succeeding paragraphs proved to its satisfaction on the balance of probabilities.
3(i) As indicated, the claimant was involved in a road traffic accident while in the course of delivering mail on 5 July 2014. Mr Harris was notified of this accident and, accompanied by Mr Aidan McCreesh, another Royal Mail manager, he visited the scene. While there, Mr Harris carried out an investigation of what had happened based on a reconstruction and his own observations. He also took photographs.
(ii) The claimant had made a delivery to a house on the right hand side of the road. His account was that he came from its driveway back on to the road, with the intention of then making a delivery to a house on the left hand side. As he went out to turn left, indicating appropriately, the other driver overtook him on his inside, using the stone verge on the left hand side of the road and the entrance of the house on the left hand side to do so. She did not succeed in this manoeuvre, and collided with him. According to the claimant’s account of the accident, he was at no stage driving on the wrong side of the road.
(iii) Mr Harris did not accept the claimant’s account of what had happened and believed the third party’s version of events. He concluded that the claimant was too far over on the wrong side of the road, and that the third party, who was travelling in the same direction, attempted to pass the claimant on his left hand side. The collision took place as the claimant was attempting to turn left into the driveway. Mr Harris concluded that the claimant had totally misjudged the speed at which the third party was travelling, and considered that the claimant was totally to blame for the accident.
(iv) We consider that this apportionment of complete blame to the claimant was untenable and somewhat harsh (and indeed was not shared by other Royal Mail managers involved in the disciplinary process), but at the end of the day we think little turns on this because it was not the claimant’s standard of driving that was ultimately the determinative issue in his dismissal, and in the rejection of his appeal against that dismissal.
(v) The more serious matter which arose was that on carrying out an inspection of the claimant’s vehicle, Mr Harris noted that the driver’s seatbelt was still engaged in the receiver, ie fastened. This had the effect of disabling the alarm which would normally sound if a driver attempted to drive without a seatbelt. This aroused his suspicions, as he knew that the practice of driving without wearing a seatbelt (but at the same time engaging it in the receiver to disable the alarm) had at times been prevalent among drivers, and it also had to be asked why, if a driver who had been wearing a seatbelt got out of the vehicle, he would re-engage the seatbelt when the empty vehicle was stationary.
(vi) Mr Harris did not ask the claimant at the scene if he had been wearing a seatbelt. His reason for not doing so was that the claimant had adopted an aggressive attitude.
However, we accept Mr Harris’s evidence that the claimant subsequently admitted to him back at the depot in Craigavon on the day of the accident that he had not been wearing a seatbelt. When asked whether this was something he did often, the claimant replied:-
“No, just today.”
Mr McCreesh was present and heard him make that admission.
4(i) Mr Harris subsequently conducted a fact-finding interview with the claimant on 25 July 2014. At that meeting he put it to the claimant that he had admitted on the day of the accident that he had not been wearing a seatbelt. The claimant did not, on that occasion, challenge the version of events which Mr Harris put to him.
(ii) At the meeting, the claimant was also asked if he remembered a conversation he had had on the day of the accident about disabling his seatbelt. He replied:-
“Yes however my GP advised me not to be wearing a seatbelt with my back complaint and I get into the van sit up straight put my arm behind my back under the seatbelt and clip into the socket again.”
According to the claimant his GP advised him to engage the seatbelt in this way when he was in pain.
It is accepted by the respondent’s managers that it is possible to engage a seatbelt in this way, albeit that the method is complicated, awkward, and time-consuming.
(iii) The claimant never indicated to his managers that he had a problem with wearing a seatbelt, and he never told them about the advice he had been given by his GP. At the hearing he agreed it would have been wise to have done so. He never produced any medical evidence or letter from his doctor in advance of either the accident or the fact-finding meeting, and despite telling Mr Harris at the meeting that he would get such a letter, he never provided one at any subsequent stage.
Leaving aside his doctor’s advice, the claimant also never attempted to obtain at any stage a formal medical certificate exempting him from the Regulations made under the Road Traffic Order which impose the general legal requirement on drivers and passengers to wear seatbelts.
5(i) Following this meeting, Mr Harris wrote to the claimant on 14 August 2014 that the case had been referred upwards for consideration of any further action as the potential penalty that could be imposed was outside the limits of his authority. (It was the seatbelt...
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