--- Basically, deliver your D2Ds and don't try to wing it.
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44. For conduct to be the basis for a finding of contributory fault under S.123(6)
ERA, it has to have the characteristic of culpability or blameworthiness and the
Tribunal found this was the case for the claimant for the reasons set out above . Lord
Justice Brandon in Nelson cited above, explained that, in view of the wording of what
is now S.123(6), it could never be just and equitable to reduce a successful
complainant’s compensation unless the conduct on his or her part was culpable or
blameworthy. The claimant was aware he was required to personally deliver the
Door-to-Door mail, he failed to do so and was aware dismissal for misconduct could
result due to the seriousness of breaching the contractual agreement between the
respondent and its client in a highly competitive business. It was so important that
the claimant was paid extra when Door-to-Door mail was delivered by him, and the
claimant acknowledged his failings when he offered to repay that part of his salary;
an offer that would not have been forthcoming had not the claimant believed himself
to be in the wrong. The Tribunal is satisfied the claimant was both culpable and
blameworthy, taking into account the fact that the 6/7 witnesses relied upon the
claimant have given no evidence whatsoever in this hearing. All the Tribunal has
before it is the claimant’s evidence, which was not entirely credible, given his
responses at the fact-finding meetings, and the evidence of Mr Taylor concerning
what he thinks those witnesses would have said, although no written statement were
taken at the time or indeed, at any stage. The respondent had produced an
overwhelming amount of evidence, including contemporaneous documents, which
points to there being no practice of a 2-week window for Door-to-Door mail
deliveries, not least the form signed by the claimant which shows clearly a 6-day
delivery pattern.
45. The Tribunal found all of the factors set out in Nelson have been met by Mr
Graves; he had been provided with the respondent’s proceeds and procedures, was
fully aware of the consequences of not delivering mail, had completed the sheet as
required that reflected a week and not 2 weeks, had not informed his manager
before he took the decision not to deliver Door-to-Door mail (in contrast to earlier
situations when he had spoken with Anthony Jones over workload) and he had not
spoken to a manager after his delivery shift concerning his decision not to deliver the
mail. It is notable both the dismissing and appeals officer relied upon the claimant’s
lack of remorse, concluding the trust and confidence it had in the claimant was lost.
The claimant at this liability hearing continued to take the view that he had done no
wrong. Taking into account the claimant’s culpable and blameworthy conduct, the
Tribunal concluded it is just and equitable to reduce the basic and compensatory
award by 50%.
46. In conclusion, the claimant was unfairly dismissed and his claim for unfair
dismissal is well-founded. The claimant contributed to his dismissal and it is just and
equitable to reduce the basic and compensatory award by 50%.
47. After judgment with reasons were orally given remedy was considered and
the parties reached a settlement. By consent, the respondent is ordered to pay to the
claimant agreed damages in the sum of £7054.98.