Man accused of going on holiday rather than looking after sick wife was unfairly dismissed

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Employer ‘ignored conclusive evidence’ that alleged misconduct did not actually happen, tribunal finds

A former Royal Mail Group employee who was fired from his job on suspicion of misusing special leave was unfairly dismissed, an employment tribunal ruled yesterday.

Mr A Vorajee had been employed as an operational postal grade at Royal Mail Group for 16 years. At the beginning of March 2016, he had made a flight booking to Mumbai, but shortly before he was due to fly his wife fell off a ladder and hurt her back.

Vorajee cancelled the flight and made a request to his employer for special leave to look after his wife and children. He produced sufficient medical evidence to support his claim, and was subsequently granted special leave from 10-24 of March.

Before the accident, Vorajee had booked annual leave from 25 March, and was due to return to work at the beginning of April. While on annual leave, he spent a period of his holiday in Abu Dhabi, but when he tried to get on his return flight to the UK on 1 April, he was denied boarding. Vorajee discovered that the UAE government had placed a travel ban on him, and until this could be overturned he was restricted from leaving the country.

Vorajee kept in regular communication with his employer over the course of the travel ban – which was not lifted until 24 July – but during this time, Royal Mail Group dismissed him on the basis that it was unlikely he would be able to return to work in the near future. On his return to the country, Vorajee appealed the decision and was reinstated but, when he provided documentary evidence of his flight bookings to his employers for the appeal process, they found evidence of flights that suggested he had travelled to the UAE while he was supposedly on special leave, and began an investigation.

Vorajee did not initially provide his employer with a copy of his passport, which strengthened its belief that he had behaved dishonestly over his special leave. He was subsequently dismissed for gross misconduct.

Upon appealing the decision, the tribunal found that Vorajee’s employer had misread the flight booking document, which should have been scanned from the bottom up. Doing so clearly showed that the flight to Mumbai on 10 March had been cancelled and that a flight from the island of Agatti to the UAE on 29 March was an error, illustrated on the document by the lack of a flight number. Additional documents provided by Vorajee at the hearing provided clear evidence that he had not left the country as his employer had suspected, found the tribunal.

Despite confusion over the evidence, the tribunal ruled that Royal Mail Group did not have sufficient evidence to conclude that Vorajee had left the UK while on special leave, or that he had flown anywhere in March outside of his pre-arranged annual leave. It was not in the reasonable band of responses to conclude that he had been guilty of abusing the special leave policy. Had the documents been read correctly, and had no procedural errors occurred, the evidence supplied by Vorajee all pointed in one direction, and he should not have been dismissed, found the tribunal.

“There is no doubt that an employer is entitled to dismiss an employee who has dishonestly abused any special leave the employer has granted. Leaving the country on holiday when claiming to be at home taking care of a relative would certainly be gross misconduct. But the employer has to behave reasonably in deciding that that is what has happened,” employment law trainer Darren Newman told People Management.

“The employer needs to consider the evidence carefully and any investigation must be open-minded. The employer should not simply be trying to gather enough evidence to justify dismissal, but to look at all of the evidence to decide what has happened. Here the employer carried out an investigation but ignored what the tribunal said was ‘conclusive evidence’ that the misconduct alleged did not actually happen.”

Sharon Tan, a partner at Mishcon de Reya, added that employers must be objective when making cases against their employees. “This case is a useful reminder to employers that they must strive to be as objective as they possibly can be when handling evidence that deals with a possible gross misconduct,” she said. “You must follow where the evidence leads, not your own preconceived ideas about a particular employee.”