UNFAIR DISMISSAL WIN

RMT helpline 0800 376 3706 :: july/august 2022 :: RMTnews 22 LEGAL An RMT member has been successful in his claims for unfair dismissal and wrongful dismissal against Govia Thameslink Railway Limited and has now been reinstated to his role. The member had been employed by GTR for 14 years when he was dismissed in July 2020. The Tribunal accepted that he had an excellent work record and was known to be reliable, always punctual and never absent. It also accepted that he had a clean disciplinary record. The matter for which the member was dismissed arose from his genuine misunderstanding of GTR’s newly introduced ‘home standby process’ and the notice that staff would be given if they were required to attend work whilst rostered to be on home standby. GTR did not challenge the genuineness of his misunderstanding. During the subsequent investigation meeting, GTR acknowledged that the member had been honest and suggested that would be taken into account to his advantage. The member was also told not to worry. Despite those assurances, and the home standby process stating that the implications of not attending for work when called from home standby was being marked as absent and forfeiting the day’s pay, the matter was progressed to a disciplinary hearing. The disciplinary manager concluded that as the member was in breach of the relevant policy, he had committed gross misconduct and was dismissed with immediate effect. In evidence before the Tribunal, the disciplinary manager said that she believed that summary dismissal was the only option and there was no argument in mitigation that the member could have made which would have changed her view. The letter sent by GTR confirming the member’s dismissal stated that the disciplinary manager had taken into account mitigating factors, however the Tribunal found that her evidence at the hearing made it clear that she had not. The member appealed against GTR’s decision to dismiss him and an appeal hearing was held. The appeal manager told the member that he found the decision to refuse his appeal difficult as it did not seem ‘morally right’, but the Tribunal found that it was clear he felt that the wording of GTR’s policies gave him no scope for manoeuvre. RMT’s legal department submitted claims of both unfair and wrongful dismissal to the Employment Tribunal on his behalf. The case was heard by the London Central Employment Tribunal at a two- day hearing in February 2022. The Tribunal upheld both claims. It found that GTR did not follow a fair process as the disciplinary manager had made up her mind before the disciplinary hearing that dismissal was the only outcome based on her understanding of the relevant policies and principles. She also stated that any breach of the policy was gross misconduct. On reviewing the policies, the Tribunal found that this clearly was not the case as there was scope for mitigating factors to be taken into account and there are some offences which are not categorised as gross misconduct. The Tribunal found that the disciplinary manager was wrong to conclude that any breach must result in dismissal, whatever the circumstances, and that this resulted in a substantive unfairness because the member’s representations in mitigation were destined to fail as the outcome had been pre-determined. The Tribunal also found that dismissal was not an appropriate sanction, fell outside the range of reasonable responses and that no reasonable employer would have dismissed in the circumstances. It took into account that the member was honest throughout, even though it would have been to his advantage to lie; that he had an exemplary attendance record, clean disciplinary record and long service; that his explanation, while amounting to a misunderstanding of the rules, was genuine; that the publicised penalty for failing to attend shift was forfeiting a day’s pay and being marked absent; and that gross misconduct offences in the relevant policies are focussed on safety on the railway, which was not at stake in this case. The member’s claim of wrongful dismissal was also upheld as the Tribunal found that he was not in fundamental breach of his contract of employment and that he had not committed gross misconduct. The Tribunal was due to consider remedy in the case, including the member’s application for reinstatement, at a further hearing. However, GTR agreed to reinstate the member before the hearing took place. This was an excellent result for the member as re- instatement following Employment Tribunal claims is rare. Tribunals order that a claimant be reinstated in less than one per cent of all unfair dismissal claims. In cases where the Tribunal does order reinstatement, the employer is not obliged to comply. Where an employer fails to comply with an Order for reinstatement, it will be ordered to pay additional compensation. UNFAIR DISMISSAL WIN Union wins rare wrongful dismissal case and member returns to work