Postal worker was not unfairly dismissed after leave of absence and sick pay dispute

10 Jan 2019 By Maggie Baska

But lawyers says claim would have succeeded had he not continued working after raising grievances

A postal worker was not unfairly dismissed, but “chose to resign on short notice” after a dispute that arose after he returned from a career break, a tribunal has heard.

Leeds Employment Tribunal ruled it was not satisfied there was a fundamental breach of contract by Royal Mail Group in a case involving Mr J Wallace, who had taken a year off. The postal worker’s claim for unfair dismissal failed. 

Wallace was employed by Royal Mail as an operational grade postal (OPG) worker from May 2000 until 19 March 2018. He was based at the Keighley delivery office in West Yorkshire for several years. 

He eventually became a postal worker higher grade, carrying out a “largely indoor-based supervisory role”. The tribunal heard Wallace “essentially ran” the hub in absence of managers. 

In March 2013, Wallace’s line manager agreed to a year’s career break, commencing in May. The manager agreed to release Wallace on the basis another worker covered the role and promised he would be able to return to the same job and location. 

The tribunal heard Royal Mail had a non-contractual career break policy, allowing employees to apply for a break of up to two years. The policy guaranteed the “right to return following a career break to an employee's former function or business unit only, and not necessarily to the same job”.

Wallace’s role was advertised in December on a temporary basis and was filled by another OPG from January 2014. 

Wallace asked to extend his career break by another year in March 2014, but the request was refused as Royal Mail said it was unable to hold his role open.

Wallace’s line manager contacted him to arrange for him to return to Keighley as its hub support.

The line manager asked Pam Wright, Royal Mail’s area collections manager and Wallace’s second line manager, for advice as he wanted the temporary OPG to remain. Wright advised the career break policy did not entitle Wallace to return to the same job. 

On 15 April 2014, Wallace’s line manager informed him his original role was not available and relocated him to another role in Halifax. Wallace returned to work in May but was “unhappy, particularly about the extended commute to work each day”.

He raised a grievance in June, claiming he had been “unfairly displaced from his original role”. He cited events as a “subtle and insidious form of bullying by… management”. 

His unfair displacement grievance was upheld, but the bullying complaint was rejected. Wright confirmed Wallace would return to his original role in September 2014. 

In January 2017, Wallace submitted another grievance about overtime issues, which was upheld. 

In September, he was asked to cover for a driver who was unwell, but declined citing health grounds. A manager suspended him for failure to follow a reasonable request. 

Wright subsequently invited Wallace to a formal conduct meeting, as the allegation was considered gross misconduct. She upheld the allegation and awarded Wallace a two-year suspended dismissal on 5 October 2017. 

Wallace was on annual leave for two weeks and was due to return to work on 13 November 2017, but he was signed off with work-related stress and anxiety on that day. 

The Bradford deputy collections manager invited Wallace to a meeting to discuss his condition and any support he might need, but Wallace did not attend. The manager spoke to Wallace and wrote to remind him of the conditions for receiving company sick pay, which included the business being satisfied the absence was necessary and due to genuine illness. 

Wallace was signed off again with work-related stress. The manager explained he was “generally concerned” Wallace was staying away from work in protest “against a perceived injustice”. 

Having taken HR advice, the manager concluded the absence did not meet one of the conditions for receiving company sick pay. Wallace did not return to work, and the manager confirmed in a letter that company sick pay had been withdrawn effective from 15 December 2017. 

Wallace resigned by letter dated 13 March 2018. He claimed Royal Mail was in breach of an “express term in his contract” relating to company pay, and had decided to withhold such pay even though his GP had certified he was not fit for work. 

He also alleged the postal service was in breach of the implied term it would not, “without reasonable and proper cause” act in a manner “likely to destroy” the relationship of trust and confidence. 

Judge Licorish ruled Royal Mail had the right to withdraw company sick pay if certain defined conditions were not met. She also said its handling of the disciplinary issue was reasonable and justifiable. As such, the tribunal was unsatisfied there was a fundamental breach of contract by Royal Mail, and Wallace’s claim for unfair dismissal failed. 

Edward Wheen, partner at Hewitsons LLP, said Wallace’s “claim of breach of the implied breach of the duty of trust and confidence, based on two previous grievances successfully raised by him” would have succeeded had he not affirmed his contract by continuing to work after those grievances.

And Andrew Willis, head of legal at HR-inform, said employers should ensure they discuss what it means for an employee to take an extended career break and what will happen on their return.

“Focus on the rules set out within the policy but, if an alternative is agreed, make sure this is minuted and stored securely,” Willis said. “This prevents a situation happening many months down the line where there is uncertainty over what was said or agreed.”

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