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In the case of McCafferty v Royal Mail, Mr McCafferty, a postman with 19 years’ service with Royal Mail, was dismissed after he had repeatedly used taxis to get to work using Royal Mail’s taxi account at a cost to the Royal Mail of £2,422.80. Following an investigation and a disciplinary hearing he was dismissed for gross misconduct on the grounds that he knowingly, and without authorisation, used the Royal Mail taxi account for his own personal purposes.
In the view of the two tribunal lay-members, Mr McCafferty would, as a matter of common sense, know that it was not common practice for an employer to pay for its employees to travel to work, and he had never sought permission to use a taxi on the Royal Mail’s account. They decided that the dismissal was fair. The Employment Judge, however, considered that the dismissal was unfair and so, by a majority, the decision was that it was a fair dismissal.
On appeal to the EAT, the decision of the lay-members was upheld. Lady Smith observed that this was an example of the lay-members reaching a different conclusion from that of the Employment Judge “…by drawing in part on their valuable ‘common sense’ and knowledge of what any employee could be expected to know.”
She also observed that, had the claim been heard under the new tribunal rules, it seemed likely that the case would have been heard and determined by an Employment Judge sitting alone, in which case the result would evidently have been rather different. She went on: “Some may consider that to be a sobering thought. It certainly seems supportive of the arguments advanced…against the proposal last year that Employment Judges be able to sit alone in unfair dismissal cases.”
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