Postman working second job while sick was unfairly dismissed

A postman has been awarded £3,000 after an employment tribunal found he was unfairly dismissed for working a second job as a taxi driver while on sick leave from Royal Mail.

The Glasgow tribunal found that Royal Mail did not carry out a reasonable investigation into Mr Weston’s actions, in a case that focused on whether his fit note precluded “any” work rather than work in his role as a postman, and the appointment of a key witness to investigate Weston’s conduct.

Despite the finding of unfair dismissal, Employment Judge Murphy reduced his compensation because the panel found his conduct “significant and culpable” because he earned money from taxi fares during periods when he was contracted to Royal Mail and was receiving sick pay.

Weston worked from Royal Mail’s Inverclyde delivery office from 2007 until his dismissal in September 2023. He delivered letters and parcels on foot, walking up to 10 miles in a shift.

In 2021, he raised a grievance against two managers, including delivery office manager Mr Corrigan, alleging sexual orientation discrimination. This led to mediation, which the tribunal heard was not wholly successful and the relationship remained strained.

Sick leave

Weston had an accident in February 2022 at work, injuring his hip. He was on sick leave until May when he returned to work on full duties. In the period between May and November, he was self-employed in a second job as a taxi driver outside his Royal Mail shifts. His managers were aware of this.

The tribunal found no express term in his contract, nor of any policy which obliged him to disclose or seek permission to work elsewhere outside of his contracted hours. There was only an obligation for Royal Mail’s drivers – which Weston was not – to record hours spent driving outside their employment to ensure compliance with rules on drivers’ hours and rest breaks.

Between November 2022 and January 2023, the claimant was put on “light duties” in the delivery office because his hip had become worse. When it flared up again in February, however, his request for light duties was turned down. He went on sick leave.

A month later it was agreed that Weston would recommence his duties on 23 March, but following an occupational health report that recommended indoor duties until the outcome of an MRI scan, this was retracted. He remained on sick leave.

Light duties unavailable

In April 2023, together with his trade union representative, he met his line manager Mr Dunn. In the meeting it was established both that he was no further forward with an MRI, and that light duties were not available.

The same month, Dunn asked him if he was driving his taxi. Weston said he was not, but that in the future it was possible he would return to doing so. Dunn asked if the car was manual or automatic and Weston replied it was manual.

The tribunal heard that Dunn said he would “check with HR”, but did not say what he was going to check with HR. Dunn never followed up with Weston on this and did not raise the issue of taxi driving with him again.

In May 2023, an OH assessment found that Weston was unfit for work due to “ongoing severe symptoms of anxiety and depression that impact on his daily activities”.

Fit notes from Weston’s GP in the ensuing months stated he was unfit due to hip pain and stress.

He began a second job driving his taxi again for commercial gain on 12 June 2023. He attempted to call Dunn twice that day to inform him of his intention to resume taxiing, but he did not answer. Weston made no further attempts to contact Dunn by phone, email or text, nor did he contact any other manager or HR.

His hours driving his taxi commercially sometimes encroached into the hours he was contracted to carry out shifts for Royal Mail had he been fit to do so. At the time, he was in receipt of half pay from the company.

‘Where did you catch me?’

Just three days later, while on sick leave, Weston was seen by two managers, including delivery office manager Mr Corrigan, driving his taxi at a local rank, one of whom took a photo.

On 15 June 2023, Corrigan phoned Weston and told him he had “caught him” taxiing or words to that effect. The tribunal heard that Weston did not deny doing so and that he did not use foul language. He asked: “Where did you catch me?” in response.

Later that day, Weston sent Corrigan a text which said: “DO NOT PHONE ME IF YOU NEED TO SPEAK TO ME SEND A LETTER”.

Corrigan then led an investigation into Weston’s conduct the following day, which included an allegation of abusive language and aggressive conduct.

Weston was dismissed on 16 September 2023 based on three allegations: that he had been dishonest to his manager and OH about his capability to work; that he had been abusive and aggressive; and that he was unnecessarily absent from work. A later appeal against his dismissal was not upheld.

Biased investigation

The tribunal concluded that Royal Mail did not carry out a reasonable investigation and it fell outside the range of reasonable responses because Corrigan was appointed to investigate Weston’s conduct during the phone call between the two.

The judgment said: “The appointment of [Corrigan] to investigate the contested nature of the call, to which he was the only other witness, was flawed. Irrespective of the historical problems in the relationship between the pair, [Corrigan] as the maker of the allegation, could not (and did not) enquire into the facts in a balanced and unbiased manner.”

Royal Mail also failed to make enquiries to obtain a reasonable level of specification of the swear words or other aggressive conduct complained about, and omitted “to put properly specified allegations” to Weston. It also failed to investigate reasonably and even-handedly Weston’s account of the phonecall, nor both the claimant’s and his union rep’s account of the investigatory meeting the following day.

The tribunal found that Royal Mail’s accusations of dishonesty were underpinned by an assumption that Weston’s fit note meant he was unfit for “any work” and not just unfit for his contracted duties with the respondent. Similarly, it had assumed that Weston’s fitness to drive a taxi professionally was a reliable indicator of his fitness to undertake his duties for Royal Mail.

It was also outside the range of reasonable responses for Royal Mail to decline to make investigations with their OH adviser and/or with Weston’s GP to test the assumptions that they had made about the implications of his taxi-driving. It was not reasonable to assume, as Royal Mail did, that the statements of the medical professionals related to “any” work, without testing that view.

Unfair dismissal

The tribunal concluded that Weston’s dismissal was unfair. However, he was found culpable because he did not seek medical advice regarding the implications of driving a taxi; and, more seriously, because he worked at times when he was contracted with Royal Mail.

“Whether [Weston] was alive to the inappropriateness or whether he recklessly ignored the implications of his taxi shift scheduling, the conduct was significant and culpable,” said the judgment.

“Taking all aspects into account, we assess that it would be just and equitable to reduce the basic award by 50% in recognition of the claimant’s predismissal conduct.”

Taking everything into account, the panel also assessed that there is a 60% chance that Weston could have been dismissed fairly and reduced his compensatory award accordingly.

Weston’s total financial award (basic plus compensatory) was set at £3,010. His claims for harassment related to disability, victimisation and wrongful dismissal were all dismissed.

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