Lesley Riddoch: Employment tribunals need reform

The case of sacked Fife postal worker Dave Mitchell shows a major flaw in the system, writes Lesley Riddoch

Dave Mitchell has 27 years service with Royal Mail, with many customers and colleagues pledging their support. Picture: TSPL

The management of the Royal Mail in Scotland is in the dock – not over last week’s poor annual results, which revealed profits down 33 per cent and a dismal performance in the parcels market, but over its refusal to reinstate a veteran postie in Cupar who has been supported by customers, fellow staff and two employment tribunal rulings.

You might think such a rural stooshie is hardly a matter of general concern. So did Royal Mail. Now it seems their intransigence could spark a national dispute involving 2,500 postal workers across the east of Scotland and leave their reputation as employers in tatters – all because of the way they dealt with Dave Mitchell, a popular and trusted postie with 27 years’ service.

Sign up to our Politics newsletter

Sign up to our Politics newsletter

According to Ken Glass, Mitchell’s Dundee-based lawyer: “During 30 years working in employment law I have never seen a man with so much support. Colleagues and customers (including lawyers and pillars of the establishment) turned up at his tribunal saying, ‘We want our postie back’. It was quite nerve-racking to act for someone with so much popular support – a responsibility beyond the usual. There was such a palpable feeling of injustice.”

The story began in August 2014 when Mitchell was delivering mail on the rural 50-mile beat east of Cupar he has worked for the last 17 years. Suddenly a car swerved in front of him, forcing the van to stop. Investigation Officers from Royal Mail got out of the car and demanded to search Mitchell and his van for test items they had placed into his mailbag after “customer complaints about missing mail”.

He agreed to the searches – which found nothing – and later to searches of his work station, locker and even his home. Still nothing was found – including the marked bank notes investigation officers had placed in brightly-coloured envelopes to resemble birthday cards.

Mitchell said the confrontation was like a scene from The Sweeney. The Royal Mail Investigations Officer later admitted it was the first time in 30 years the unit had failed to catch a suspected thief red-handed. So that was the end of it, right? Wrong.

Royal Mail sacked Mitchell five months later, claiming theft and gross misconduct. His local colleagues held two strikes urging his reinstatement, but Royal Mail would not back down.

He recalled: “There was no evidence so I thought, don’t worry, you’ll be back at work in a few weeks. But they don’t need evidence. In employment law they just needed “reasonable belief”, not hard proof.”

Things looked up for Mitchell again when an employment tribunal ruled “the employer did not have reasonable grounds on which to sustain their belief in the claimant’s guilt” and directed the Royal Mail to reinstate the postal worker.

The Royal Mail appealed but the reconsideration hearing upheld Mitchell’s case and directed (again) that he be reinstated. Royal Mail refused – as is their right – so the tribunal judge awarded Dave £57,000 compensation, a slightly enhanced sum because the company had refused to comply with the reinstatement ruling.

A Royal Mail representative then visited Mitchell offering a total package of £80,000 if he signed a non-disclosure contract – but he refused.

Mitchell said: “I didn’t want the money. I wanted my job back. So I’ve put the money in a separate account and I haven’t touched it. If I get reinstated, I’ll return the money. I’m determined to get justice.”

Local MP Stephen Gethins has asked David Cameron to intervene, “because this is about more than one man – it’s also about fairness and respect for employment law”.

So what is Royal Mail’s problem?

A spokesperson pointed to a rider in the judge’s ruling where he says: “It is certainly still possible the claimant was guilty of the serious misconduct alleged against him.”

This caveat is hardly surprising. An employment tribunal doesn’t establish guilt or innocence, but simply whether an employer has just cause for dismissal on the balance of probabilities. But Royal Mail said: “Where we have previously lost an employment tribunal and reinstatement has been ordered, we have re-instated the individual. We believe [it] is not appropriate to do so where the case involves theft.”

Royal Mail has lost two tribunals yet continues to accuse Mitchell of theft. It’s a shambolic situation, which is nonetheless entirely legal, and has repercussions for every worker in Britain.

Mitchell said: “I don’t want my colleagues to lose wages by coming out on strike. But if Royal Mail get away with this, what’s the point of having a union or a tribunal system? Companies can just overrule judges and panels – it’s like being sacked twice.”

MPs are not keen to reform this part of employment law, but lawyer Ken Glass has a stop-gap solution. He said: “If after a reinstatement order, the employer is unwilling to take back the worker, compensation should be decided by the judge unfettered by current statutory limits.”

That could change the current situation completely. At the age of 57, Dave Mitchell has almost no chance of re-employment due to Royal Mail’s continuing insistence on his guilt, plus local publicity about his case and also his age. If there was no upper limit on compensation, the judge could take all this into account – and the loss of his pension entitlement – and award him £500,000 compensation not £57,000. Which might make Royal Mail think again.

It’s a simple proposal for the UK Parliament to consider and would affect only a tiny proportion of tribunal cases. Fewer than 5 per cent end with reinstatement orders, so the Cupar postal worker’s story is both exceptional and outrageous.

Mitchell was about to get married when he was sacked and though his partner stands by him, both feel too distracted to concentrate on wedding arrangements. He currently drives elderly and disabled people to appointments and social events for a charity to stay busy. So is this how it ends? Or will someone act to restore faith in the employment tribunal system and the management of Royal Mail?