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Ben Jones
Ben Jones, UK Lawyer
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Our postman pulled his hand brake on but the Van rolled approximately

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Our postman pulled his hand brake on but the
Van rolled approximately 2m into a stationary
Caravan. Damage mad minimal. He did not do this
On purpose but had been sacked for gross misconduct,
He then lost his appeal. He had been on sick leave with
A foot injury when training on handbrake control had been
Given. He had been with Royal Mail 9 years with an unblemished
Record. What chance would he have at a tribuneral

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Just to clarify, he has been sacked because of the accident you described please?

Customer: Yes he was dismissed for failing to apply the handbrake
Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Many thanks for your patience. I will explain the law on such dismissals and what a tribunal would look at when considering his claim.

Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
• Conducts a reasonable investigation;
• Follows a fair disciplinary procedure;
• Has reasonable grounds for believing the employee was guilty; and
• Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.

In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:

1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.

3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. In this case a 9-year unblemished record where the act of misconduct was unintentional and an accident I would have said that a warning is more appropriate.

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken. One thing is for certain though – it is impossible to state whether he would be successful or not, especially as it is for the employer to prove the dismissal was fair and we do not know what evidence or defence thy will provide.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:
Customer: replied 4 years ago.
So my postman has an unblemished record if 9 years . He felt he definitely pulled the handbrake on but it possibly did not fully engage. He definately did not do this on purpose bearing in mind he still has a family to support. I am am employer and feel he could have been disciplined and not dismissed. What else can I do to help his case. The PO have advised if we take the case forward we are liable to costs en excess of 3500, what other advise can you help with, thank you
you will only be potentially liable for costs if you make the claim and lose and the tribunal finds that you unreasonably continued with it when it was obvious there were no reasonable prospects of success. So it is certainly not a guarantee that costs will be payable. This can be used as a tactic to try and prevent a claim from being brought forward.

At this stage you could try and reach a settlement with the employer, for example some compensation to drop the claim, but if they refuse to negotiate or to accept any liability then all you can do is proceed with the claim and try your best. After all it is the employer who has to justify if the dismissal was fair and if they cannot then they will lose.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 4 years ago.
Thank you Ben this has been a great help. One last question - I understand the law has changed in the last six months making it more
Difficult for emoyees to take their employers to tribuneral. Certainly the amount of paperwork is phenominal. ACAS has an agreement with the PO does this make it difficult for them to represent my post man ?
Thank you once again
The law changed in a sense that the tribunal now has fees which employees must pay before they can claim. So it has made it less accessible, that's for certain.

ACAS are an independent body and they do not have agreements with any company as such. Also they do not offer representation – they are an arbitration and negotiations body, they are there to act as an independent party to try and facilitate an agreement between the parties, whilst the tribunal process is ongoing. But if he wants legal representation then he would not get it from ACAS.
Customer: replied 4 years ago.
Sorry Ben my mistake I meant the union CWU
What kind of agreement are we talking about?
Customer: replied 4 years ago.
The way ACAS explained the CWU have an agreement
With the PO to abide by their rules of conduct but I have to admit I do not
Understand. I assume they agree not to take industrial action. But would
Have thought they should represent their member at a tribuneral
Yes I do not see why they should not be able to represent him, it is unlikely that there is an agreement between a union and the employer of its members that would mean they cannot work against each other, it defeats the whole point of having a union
Customer: replied 4 years ago.
Thank you Ben you have been must clear with
Your answers thoroughly recommend you
Many thanks, all the best