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Dismissal for non-criminal conduct

Okhiria v Royal Mail

Gross misconduct at work can be criminal behaviour. But that crossover doesn’t necessarily have a bearing on an employer’s internal procedures. It’s perfectly possible that an employer can fairly dismiss even where the police decide not to prosecute or where there has been an acquittal.  

Mr Okhiria was a postman, dismissed for gross misconduct after being suspected of various criminal activities. He was due to be prosecuted but

before that happened the Royal Mail dismissed him. He was later acquitted of the criminal charges and brought an unfair dismissal claim, arguing that his employer should have waited until the criminal proceedings were over before deciding whether or not he should lose his job.

His claim failed. The Employment Tribunal held that the employer had adequately and reasonably investigated the alleged misconduct and its decision to dismiss fell within the band of reasonable responses. 

Every case turns on its facts but here there were some quite interesting points, aside from the main thread that criminal processes are usually distinct from a company’s internal disciplinary decisions.  

It didn’t matter that the disciplining officer did not have a transcript of the police interview (or a copy of the tape) to hand. Relying on a summary of that interview was fine. Nor did it matter that papers relating to the internal appeal and which invited a response from Mr Okhiria were sent to the wrong address. The employer had no reason to believe that had happened because employees rarely respond, and also Mr Okhiria had an opportunity to point out later that he hadn’t commented on the notes (which, incidentally, he didn’t). 

The Employment Appeal Tribunal upheld the tribunal’s decision; there was no reason not to, it said, because there was nothing perverse in it.