Industrial Tribunals Northern Ireland Decisions

 
CASE STATED BY AN INDUSTRIAL TRIBUNAL FOR THE OPINION OF THE COURT OF APPEAL FOR NORTHERN IRELAND UNDER ARTICLE 22 OF THE INDUSTRIAL TRIBUNALS (NORTHERN IRELAND) ORDER 1996

CASE REF: 2550/02

APPLICANT: Gerard Devlin

RESPONDENT: Royal Mail

Introduction

1. These proceedings were commenced by the presentation, by Gerard Devlin, of an originating application which was presented on 11 November 2002. A copy of that originating application is included in the bundle of documents attached and marked 'A'. Gerard Devlin is the respondent to this appeal, but he was the applicant in the proceedings before the industrial tribunal. He is referred to below as "the applicant."
2. Royal Mail entered an appearance to the proceedings by presenting a written notice of appearance which is attached and marked 'B'. Royal Mail is the appellant in this appeal, but it was the respondent in the proceedings before the industrial tribunal, and is referred to below as "the respondent."
3. The tribunal's decision ('the Decision') is included among the attached documents and is marked 'C'.

The context

4. The applicant was employed by the respondent as a postman, at its Newry Depot, from 10 January 1994 until 19 August 2002. On 25 June 2002, the respondent decided to dismiss the applicant. That dismissal was the subject of an unsuccessful internal appeal. The dismissal took effect on 19 August 2002.

The issues

5. Both parties agreed that the applicant was dismissed because the respondent concluded that the applicant was incapable, on medical grounds, of consistently meeting the respondent's attendance standards (because of the applicant's poor attendance record).
6. Because the respondent had shown that the reason for dismissal was a potentially fair reason, the main liability issue in these proceedings was whether the dismissal was actually fair or unfair, within the meaning of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 ('the Order').

The findings of fact

7. The facts found by the tribunal are set out at Paragraphs 8 to 11 below.
8. The tribunal unanimously made the following findings of facts which were set out at sub-paragraphs (1) to (18) of paragraph 19 of the Decision:-

"(1) According to the respondent, all the action which it took in relation to the applicant's absences (including the initial decision to dismiss and the internal appeal) was action taken in accordance with the applicable version of the Royal Mail Attendance Procedure ("the Procedure").

(2) We wish to draw particular attention to the following features of the Procedure:

(a) The Procedure was agreed between Royal Mail and the relevant trade union (the CWU).

(b) As paragraph 1 of the Procedure makes clear, the Procedure is designed to help Royal Mail serve its customers "by encouraging the high standards of attendance normally achieved and maintained by the vast majority of employees so that a reliable staffing base can be maintained." Staff absences are a considerable problem for the respondent.

(c) Accidents which happen in the course of Royal Mail work are ignored for the purposes of the Procedure. However, all other sickness or injury-related absences are, in principle, within its scope.

(d) As the foreword to the applicable version of the Procedure makes clear:

"The focus of this Procedure is on Capability and not Conduct."

(e) The Procedure (at paragraph 2) requires that each case must be treated on its merits, taking into account issues such as length of service and nature of work.

(f) Paragraph 2 of the Procedure states that the Royal Mail Attendance Standards are flexible enough to be relaxed where the merits of the case justify it.

(g) However, as paragraph 2 also makes clear, every employee who fails to achieve those minimum standards will have his/her attendance monitored.

(h) Paragraph 3 asserts that absences due to sickness are assumed to be genuine.

(i) As is made clear at paragraph 5 of the Procedure, it consists of three stages to which different standards of attendance apply.

(j) According to Appendix A of the Procedure,

"attendance may be regarded as warranting formal action if [a relevant employee] has

Stage 1: 4 absences or 14 days in a 12 month period.

Stage 2: 2 absences or 10 days in any 6 month period during the next 12 months.

Stage 3: 2 absences or 10 days in any 6 month period during the next 12 months."

(k) Accordingly, four absences within a 12 month period, or absences in such a period of 14 days in total, may trigger a First Stage interview, which may result in a First Stage Warning.

(l) According to paragraph 5.2 of the Procedure, if any employee who has been given a First Stage Warning fails to make the required improvements, that employee should normally be called to a formal second stage interview. The purposes of that interview is to warn the employee that attendance is unsatisfactory and that he/she could be facing dismissal if he/she does not reach and maintain an acceptable standard of attendance. At the Second Stage interview, the interviewer should first ask the employee to put forward an explanation for the absence and any "mitigating" factors. Then (assuming it is appropriate to continue the interview), the interviewer should give the employee a Second Stage Warning that his/her attendance is unsatisfactory, and tell the employee that if there is insufficient improvement to reach and maintain an acceptable standard, he/she is liable to be dismissed; and the employee should also be informed of the specific improvement required (in terms of absence level and timescale) in order to avoid the need to consider dismissal.

(m) Paragraph 5.3 of the Procedure discusses the Third Stage, in the following terms. If, after receiving a Second Stage Warning, there is insufficient improvement in the employee's attendance, and the manager considers that dismissal may be appropriate, the employee should be advised that Royal Mail is considering dismissing him/her, and he/she should be invited to put forward reasons why he/she should not be dismissed. At this third stage, when the interview has been held, the manager who conducted it will take a decision on dismissal. If the decision is to dismiss, the employee will be informed accordingly. If the manager decides that dismissal is not justified, the employee will return to Stage 2 of the Procedure and the attendance standards appropriate to that Stage will apply. There is provision for an internal appeal against dismissal.

(n) The Procedure also contains separate arrangements for dealing with long-term absence and rehabilitation. According to paragraph 9 of the Procedure, if a particular absence is dealt with under the arrangements for dealing with long-term absences, "a decision will be made by Personnel and the line manager as to whether the absence counts [is to be taken into account] for the purposes of the Royal Mail Attendance Procedure."

(o) The provisions in relation to long-term absence are to be found in Appendix B of the main Attendance Procedure. According to paragraph 1 of that appendix the latter provisions "are aimed at facilitating the early return of employees from long-term sick leave, who are both able and willing to return, or rehabilitation to modified duties."

(p) In considering whether or not to dismiss (at the Third Stage of the Procedure), the decision-maker is entitled and obliged to have regard to the relevant employee' s past absences record. However, the decision-maker cannot and must not confine his/her attention to that past record. Instead, account must be taken of all matters known to the decision-maker which make it more, or less, likely that the pattern of attendance will be unsatisfactory in the future.

(q) Because absences are assumed under the Procedure to be genuine, and because the focus of the Procedure is on capability (as distinct from conduct), blame is not properly an important issue, under the Procedure, at the Third Stage. In the context of the Procedure, a "mitigating" factor – see sub-paragraph (l) above – is one which makes it less likely that a past history of unsatisfactory attendances will be repeated in the future.

(3) It is necessary to look at the applicant's absences record in some detail. For present purposes we have concentrated upon the period from 1^st January 1997 until the date of the decision to dismiss (the last 5½ years of the applicant's employment). However, we have not lost sight of the fact that the applicant had a significant number of short-term intermittent absences in the years from 1994 to 1996.

(4) In the following account of the applicant's absences, we refer to the first six months of any year as "A" and the second six months as "B". (Thus, "1997B" is a reference to the period July to December 1997):

(a) From 1^st January 1997 until 30 June 2001, the applicant had 16 relevant absences, which occurred during the following periods:

1997A – 1 absence
1997B – 1 absence
1998A – 1 absence
1998B – 3 absences
1999A – 1 absence
1999B – 2 absences
2000A – 1 absence
2000B – 1 absence
2001A – 3 absences
2001B – 0 absences
2002A – 2 absences

(b) From 1st January 1997 until 30 June 2001, the applicant was absent on 145 days because of relevant absences, but 99 of those days were accounted for by just two absences – a 2001 absence because of a football injury and a 2002 absence because of a household accident. (Both of the latter two absences are discussed in greater detail below).

(c) Most of the 16 absences were of short duration. Only three of them listed for more than five days:

(i) The 2001 football injury absence

(ii) The 2002 household injury absence

(iii) A 7-day absence, due to flu, in March 1999.

(d) Only five of the 16 absences were injury-related. The rest were accounted for by various miscellaneous illnesses, such as "flu", "stomach upset", "vomiting", and so on.

(e) Apart from the 2001 and 2002 injuries mentioned at sub-paragraph (c) above, the dates, duration and cause of the injury-related absences were as follows:

(i) 1998B – absent for 1 day – bruising to right side of body.

(ii) 2000A – 4 day absence – injury to eye.

(iii) 2000B – 1 day absence – cut to left thumb.

(f) The circumstances of the 2001 football injury were as follows. In June 2001, the applicant had to get stitches in his fingers because of a football injury. He arrived into work the day after he received the injury, but was sent home by his manager because he clearly was incapable, on account of his injury, of doing the work which he was employed to do. He was unable to work for 12 working days because of the injury. He returned to work in early July 2001, having made a complete recovery from his injuries.

(g) The circumstances of the 2002 household injury were as follows. In January [2002], the applicant fell from the loft in his own home. In that fall, he sustained serious but temporary injuries to his back arm and leg. As a result, he was absent from 3 January 2002 until 13 April 2003, missing work on a total of 87 days. He returned to work in early April 2002, having made a complete recovery from his injuries.

(h) Over the entire period of the applicant's employment with the respondent, the number of absences and the number of working days lost through relevant absences was as follows:

1994 – 3 absences – 4 working days lost
1995 – 0 absences – 0 days lost
1996 – 2 absences – 12 days lost
1997 – 2 absences – 8 days lost
1998 – 4 absences – 10 days lost
1999 – 3 absences – 14 days lost
2000 – 2 absences – 9 days lost
2001 – 3 absences – 16 days lost
2002 – 2 absences – 88 days lost

(i) Over the period from the date of issue of a First Stage warning on 23 March 1999 until the date of the Third Stage interview in June 2002, the number of absences, and the number of days lost through relevant absences, was as follows:

1999A (part) – 0 absences – 0 working days lost
1999B – 2 absences – 7 days lost
2000A – 1 absences – 4 days lost
2000B – 1 absences – 5 days lost
2001A – 3 absences – 16 days lost
2001B – 0 absences – 0 days lost
2002A – 2 absences – 88 days lost

(5) In the evidence of the respondent's witnesses in these proceedings, and in the arguments made on behalf of the respondent in these proceedings, one position has consistently maintained: It has consistently been asserted that the respondent does now accept, and has always accepted, that all of the relevant absences of the applicant were fully justified, and that none of them were of unreasonable duration.

(6) The applicant was the subject of action under the Procedure at all three stages:

(a) On 23 March 1999 he was issued with a First Stage warning.

(b) On 20 January 2000 he was issued with a Second Stage warning.

(c) On 20 January 2001 (because his attendance patterns had improved in the meantime), he reverted to the First Stage warning stage of the Procedure.

(d) On 14 August 2001 he was again issued with a Second Stage warning.

(e) His Third Stage interview took place in June 2003.

(7) The applicant was issued with the First Stage Warning on 23 March 1999, in the light of the fact that he had incurred four sick absences totalling eighteen days during the 12 months ending on 10 March 1999.

(8) In January 2000, the applicant was issued with a Second Stage Warning, because, since the First Stage Warning, he had incurred two sick absences, totalling seven days, during the six months ending on 22 December 1999. (From 4 October 1999 until 7 October 1999, the Applicant had been off with flu. He was off again from 20 December 1999 until 22 December 1999, again with flu.) At that time, the applicant's line manager "acknowledged the fact that the recent bout of flu seemed to be an epidemic and that Mr Devlin had returned to work before a full week [had expired]." "The manager also told Mr Devlin "that if he failed to meet the required standards in future and he found himself being faced with further action under the Attendance Procedure this would be taken into consideration".

(9) On 14 August 2001, the applicant was issued with another Stage Two Warning. At the interview which preceded the issue of that Warning, the applicant stated that the last absence was due to a football injury, when he had received ten stitches to two fingers. In the respondent's letter which notified the applicant of the issue of the Second Stage Warning, on 14 August, it was recalled that, on 20 January 2000, he had been issued with a Second Stage Warning; that on 20 January 2001, he had reverted to the First Stage Warning; and that since his reversion to the First Stage, he had incurred two sick absences, totalling sixteen days, during the period 11 June 2001 to 30 June 2001. (Apparently it is the practice of the respondent, under the Procedure, to take account of non-working days in circumstances in which a period of sickness absence straddles two sets of working days). In a letter to the applicant dated August 2001, the relevant manager told the applicant: "I have carefully considered what was said at the interview, but I have decided that a further Second Stage Warning is appropriate in the circumstances. My reasons for taking this decision are that you have failed to meet the required standard".

(10) On 1 March 2002, the respondent's own occupational health adviser, Ms Joanna Elliott, wrote to Gerard Brady, the applicant's Delivery Office Manager, pointing out that the applicant had told her that he injured himself at home on 3 January 2002, when he fell ten feet out of the roof space at his home; as a consequence, he had sustained injuries to his head, right elbow, right leg, neck and back. Ms Elliott added: -

"Mr Devlin's symptoms are still pronounced enough for him not to be able to return to work in any capacity at present. The level of pain that he is reporting even with day-to-day activities around home is such that I believe he requires access to physiotherapy as soon as possible to allow for increased mobility".

In the same letter, Ms Elliott suggested that the applicant should be reviewed by the respondent's Occupational Health Adviser in four or five weeks time. However, by 13 April, the applicant had returned to work, having completely recovered from his injuries.

(11) On 6 June 2002, Mr Cullen wrote to the applicant to point out that he was required to attend a Stage 3 interview on 14 June 2002. In that letter, he remarked: -

"Your unsatisfactory attendance record has caused serious concern for some time now, and despite previous warnings, you have been unable to meet the Attendance Standards required by Royal Mail (copy attached)."

Mr Cullen went on: -

"Since the last Warning you have incurred a further one absence totalling 101 days, indicating that you have failed to meet the required improvement. Your sick absence has been referred to the Employee Health Service Doctor who has forwarded a report (copy also attached) and there does not appear to be any underlying health reasons for your absences.

I am now writing to let you know that I am now giving consideration to your dismissal on the grounds of your unsatisfactory attendance. Before making this decision, I am inviting you to attend a formal interview. At the interview you will be asked to put forward any reasons as to why you should not be dismissed".

(12) A medical report which was mentioned in the quoted extract from Mr Cullen's letter consisted of an internal memo dated 13 May from Dr. A. Glasgow, Sessional Occupational Physician. In that memo, Dr. Glasgow refers to the Applicant's medical condition in the following terms: -

"I would have expected the injuries sustained in [the household accident] to have healed sufficiently to allow return to work. [The Applicant had in fact returned to work in early April] There is no other medical evidence of underlying medical conditions other than that injury to elbow and back. There is no evidence to justify medical retirement in this case …I note that he is now under consideration of the final stage of the attendance procedure although in view of the injuries sustained his initial absence may well have been anticipated".

(13) The Stage 3 meeting with Mr Cullen was held on 14 June as planned. At that meeting, the applicant had not brought along the copy of his sickness record which had been provided to him by the respondent beforehand. He had no representative with him; he was unaccompanied. He agreed that the printed attendance record was correct and that it was a poor attendance record. As Mr Cullen recorded, in his notes of the interview:

"I then asked him for reasons as to why he should not be dismissed. He stated his last day of absence was due to injuries he sustained as a result of a fall at home and the finger injury occurred playing football and that he had attended for work with this injury but was sent home as the injury was so severe it prevented him from working in a safe manner".

(14) On 25 June 2002, Mr Cullen set out a note of his decision. That note was in the following terms:-

"Mr Devlin failed to convince me he will make the necessary improvement in his attendance to provide regular service. His overall record is poor and there is no underlying condition which would account for his bad attendance records".

Mr Cullen's note went on:

"Since the Stage 3 was triggered he has incurred a further absence which confirms my belief his attendance pattern will not improve. He was not prepared for his interview as not only had he no representation but he had none of the paper work with him which had been forwarded to him. During the interview he was unable to provide any substantial reasons why he should not be dismissed other than he had been unlucky. Therefore, my decision is that he should be dismissed".

(15) Mr Cullen notified the applicant in writing of the decision to dismiss, in a letter dated 25 June. In that letter, Mr Cullen wrote as follows: -

"I interviewed you on 14 June 2002 to hear your reasons why you should not be dismissed because of your unsatisfactory attendance. Having carefully considered your attendance record and the points made by you at the interview, I have concluded your current attendance is unlikely to improve in the foreseeable future, has been unacceptable, is likely to continue and there are no mitigating circumstances to make it unreasonable for me to dismiss you.

My decision, therefore, is that you will be dismissed on the grounds of unsatisfactory attendance. The reasons for my decision is that despite previous warnings, you failed to make the necessary improvement in your attendance pattern".

(16) The applicant appealed against the dismissal decision, to Mr Gormley. At the appeal hearing, he was represented by Mr Watson, his trade union representative. Mr Watson, in his submission to Mr Gormley, said that there had been an improvement in the applicant'' attendance pattern following the issue of the initial Stage Two Warning in January 2000. Mr Gormley construed Mr Watson's submissions, generally, as basically constituting a plea for clemency. According to Mr Gormley, in his evidence to us, he looked at the overall attendance record and the fact that the Applicant had been off for one day, with a "bug," in May 2002; having done so, he did not think it was likely that the applicant would give a sustained attendance (in accordance with the attendance standards) in future.

(17) In a note which he prepared of his conclusions/deliberations, soon after the appeal hearing, Mr Gormley stated the following: -

"Whilst Mr Devlin has tried to improve his attendance his overall record is poor and I do not believe if given another chance he will achieve and sustain the standards required".

(18) In a letter to the applicant dated 1 October, Mr Gormley informed him of the fact that his appeal was unsuccessful. In that letter, he stated the following: -

"I have now given careful consideration to all you put forward at your appeal hearing, together with the new information contained in your file.

Basically, I have reviewed your overall attendance record and it is clear that despite previous Warnings and chances to demonstrate that you could meet and maintain the standards of attendance expected to a Royal Mail employee, you have failed to do so".

Mr Gormley went on: -

"Whilst the genuineness of your actions is not in doubt you have failed to convince me that you could improve your attendance record to meet and sustain the required standards in the future given the fact you have regularly failed to do so in the past.""

9. The tribunal unanimously also made the findings of fact which are set out at paragraphs 32 to 36 of the Decision:-

"32. In deciding to dismiss the applicant, Mr Cullen did not consider whether injuries similar to the 2001 football injury absence and the 2002 household injury absence were likely, or unlikely, to occur in future; instead, in connection with dismissal, he concentrated upon the number and durations of all the various relevant absences in general and on the fact that the absences were not linked by any common underlying cause.

33. In deciding whether to uphold the internal appeal, Mr Gormley, like Mr Cullen, concentrated upon the number and durations of the various relevant absences which had already occurred, and the fact that they were not linked by any underlying cause; he did not give consideration to the question of whether injuries similar to the two longer term 2001 and 2002 injuries were likely to recur.

34. From the date of the August 2001 Second Stage Warning, the applicant was a person who would be at risk of dismissal if he failed to meet the respondent's attendance standards during the post-August 2001 period. That risk was the result of the Second Stage Warning. That Warning was a result of the applicant's unsatisfactory patterns of attendance prior to 4 August 2001. So the applicant could not have been dismissed in June 2002 if the pre-August 2001 patterns of attendance had been satisfactory. In technical legal terminology, those earlier patterns of attendance were a "causa sine qua non" of the dismissal. But they were not the immediate or proximate cause.

35. The applicant was dismissed because, following the Second Stage Warning, his subsequent patterns of attendance caused the respondent to have renewed and heightened concerns about the prospects of the attendance standards being met by him in the future. (See paragraphs 19(14), 19(15), 19(17) and 19(18) above). That re-activation and accentuation of the respondent's concerns was the activating cause of the dismissal ("the causa causans").

36. In effect, what the respondent did was as follows. It replaced a Stage Two Warning with a dismissal because of renewed and heightened concerns (about the applicant's prospects of meeting the attendance standards in future) which were the result of an assessment of the applicant's attendances from August 2001 onwards. So the post-August 2001 absences made the critical difference."

10. The Tribunal unanimously accepted that the following documents accurately set out the reasoning upon which the respondent's dismissal decisions were based:

(1) Mr Cullen's note of 25 June 2002 (which is mentioned at paragraph 19(14) of the Decision).

(2) Mr Cullen's letter of 25 June 2002 (mentioned at paragraph 19(15) of the Decision).

(3) The note of the internal appeal hearing, which Mr Gormley made after that hearing. (See paragraph 19(17) of the Decision).

(4) Mr Gormley's letter of 1^st October 2002 (mentioned at paragraph 19(18) of the Decision).

11. The conclusions set out at Paragraph 38 of the Decision were conclusions which were arrived at only by those members of the tribunal who were in the majority in relation to the decision on liability. (Those members are referred to in this Case Stated collectively as 'the Majority'). Those conclusions of the Majority were based on the following findings of fact which were made by the Majority, but which were not explicitly set out in the Decision:-

(1) The 2002 household accident was a freakish and unpredictable incident, an incident which was outside the pattern of the applicant's other absences. Because of those factors, it was of no value in predicting the likely pattern of any future absences on the part of the applicant.

(2) The fact that the household accident was of no value in predicting the likely pattern of future absences was a fact which was obvious, and which would be obvious to any employer who properly considered the issue.

The submissions

12. The submissions made by the applicant were as described at paragraph 20 of the Decision:-

"In essence, the applicant's submission on liability was to the following effect. First, he argued that, in operating the Attendance Procedure, the Respondent ought not to have taken account of the fact that he was absent in 2001 because of the football injury and in 2002 because of the accident which occurred at home. Secondly, he argued that, in considering those two absences under the Procedure, the Respondent took insufficient account of the fact that these were 'one-off' accidents which were unlikely to recur. Thirdly, in any event, the applicant argued, the decision to dismiss was unreasonable."

13. The submissions made on behalf of the respondent were as described at paragraphs 21 and 22 of the Decision:-

"21. For the respondent, Mr McArdle drew our attention to Spencer –v- Paragon Wallpapers [1997] ICR 301, International Sports Co Ltd –v- Thompson [1980] IRLR 340 and Roll Royce Ltd –v- Walpole [1980] IRLR 343. He pointed out that the meeting of attendance standards was a matter of considerable importance to the respondent. In considering the fairness of this dismissal, an understanding of the background was crucial. The applicant wanted special status for accidents sustained outside the workplace, but the Procedure – which is an agreed procedure – allows such accidents no such special status. Mr McArdle reminded us that what we have to consider is whether or not the decision to dismiss was within the band of reasonable responses open to an employer, and that we must not decide the case merely on the basis of whether we ourselves consider Mr Cullen, or Mr Gormley, or both of them, to have acted in an unreasonable manner.

22. We drew the attention of the parties to the case of Lynock –v- Cereal Packaging Limited [1988] IRLR 510. However, Mr McArdle was satisfied that the cases cited by him (as identified above) adequately addressed the legal principles which are mentioned in Lynock; accordingly, he made no specific submissions in relation to Lynock."

The law

14. In arriving at its decision, the tribunal had regard to all of the cases cited by the respondent in their submissions (as listed at paragraphs 12 and 13 above). The tribunal also had regard to the general principles of unfair dismissal law, as set out in Iceland Foods Limited v Jones [1982] IRLR 439 and in Post Office v Foley [2000] IRLR 827. The tribunal also had regard to the terms of Article 130(4) of the Order.

The tribunal's conclusions

15. The tribunal unanimously identified the following legal principles, which it considered to be applicable in the circumstances of this case:-

(1) The tribunal recognised that the general test of fairness (as set out in Article 130(4) of the Order) has to be applied, in the circumstances of any particular case, with due regard to the nature of the potentially fair reason put forward by the employer in that case. Nevertheless, the tribunal considered that, in the circumstances of this case, it was necessary to have regard to the following general principles:-

(a) In considering the relevant issues, we had to consider the reasonableness of the employer's conduct, not simply whether we (the members of the industrial tribunal) considered the dismissal to be fair.

(b) In judging the reasonableness of the respondent's conduct, a tribunal must not substitute its decision as to what was the right course to adopt (for the decision actually made, in that connection, by the employer).

(c) In many cases, there is a band of reasonable responses within which one employer might reasonably take one view, while another employer might quite reasonably take another view.

(d) The concept of reasonable responses applies not just in the context of the actual decision to dismiss, but also in relation to the procedures followed during the course of the process which culminated in the dismissal.

(e) The function of the tribunal, as an industrial jury, is to determine whether, in the particular circumstances of a particular case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, dismissal is fair. If the dismissal falls outside that band, dismissal is unfair.

(2) In both capability and conduct cases, in determining whether the dismissal is fair or unfair, a tribunal has to decide whether the relevant employer, before deciding to dismiss, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. In considering the reasonableness of the investigation, the band of reasonable responses test is of considerable importance.

(3) In a medical incapability case, the primary purpose of such an investigation is to inform the employer as to the likelihood of the employee being able to meet and maintain acceptable standards within a reasonably short timeframe.

(4) If dismissal is being considered on capability grounds mainly because of intermittent and unrelated short term absences, there is still a need to form a view as to the likelihood of a satisfactory pattern of future attendances. However, in considering that issue in such cases, 'reasonable investigation' usually will not involve the seeking of medical advice. This is because, usually, medical advice on miscellaneous short term absences will provide little assistance in determining whether there is a likelihood of satisfactory future attendance patterns.

(5) Accordingly, the dispensation from the need to consider a medical prognosis, in intermittent absent cases, is pragmatically based.

(6) In such situations, an employer's focus may properly shift to an examination of the nature, duration and pattern of past absences. But such a shift, in the focus of examination, is appropriate in such cases only because, in the context of intermittent absences, an examination of past events is usually the best available indicator of likely future attendance trends.

(7) In all medical capability cases (including cases where the main difficulty is caused by unrelated, intermittent, ill-health absences) there is a need to strike a balance between the employer's need for the work to be done and the employee's own interests (in keeping his job).

(8) In any medical incapability situation (including a situation in which an employee is incapable of meeting attendance standards because of intermittent, relatively minor absences), the main issue is whether or not the applicant is likely to be able to sustain satisfactory levels of attendance in the future. Although, for the latter purpose, it is necessary and appropriate to have regard to the absences which occurred in the past (because they may, in many situations, provide an indicator of what is likely to happen in the future), those past events are being considered mainly for the purpose of coming to a conclusion as to what is likely to occur in the future.

16. The Majority decided that the dismissal of this applicant was unfair. That decision was based on the conclusions set out at paragraph 17 and 19 below, which the Majority arrived at.
17. First, the Majority concluded as follows. The respondent through its decision-makers (Mr Cullen and Mr Gormley), did not consider whether the 2002 household accident absence was a good indicator of the likely pattern of future absences, but simply assumed that it was. By failing to give such consideration, the respondent stepped outside the range of reasonable responses.
18. A. At point 2 of a letter dated 25 February 2004 (see Appendix G), the respondent has suggested that a reference to the football injury of 2001 should be included in paragraph 17, because a reference was made to that injury at paragraph 32 of the Decision. However, paragraph 17 reflects the terms of paragraph 38(1) of the Decision. No mention was made of the football injury at paragraph 38(1). Accordingly, this suggestion of the respondent has not been acted upon
19. The Majority explain that, in arriving at the conclusions mentioned at paragraph 17, the Majority was much influenced by the contents of the documents listed at paragraph 10 above.
20. Secondly, the Majority concluded as follows. The household accident absence was clearly of no value in predicting the likely pattern of future absences. Accordingly, in replacing the Second Stage Warning with a dismissal, on account of the post-August 2001 absences, the respondent stepped outside the range of reasonable responses. [At the request of the respondent, the Court's attention is also drawn to paragraphs (1) and (2) of paragraph 38 of the Decision].
21. The Majority explain that, in arriving at the conclusions mentioned at paragraph 19 above, the Majority was much influenced by the following:

(1) the nature of the 2002 household injury;

(2) the fact that the applicant did not – on the basis of his absences record – seem to be unusually accident-prone; and

(3) the general pattern and nature of the applicant's other absences.

22. The Majority also state that, in arriving at the conclusions set out at paragraphs 17 and 19 above, regard was had to all the evidence and to all the findings of fact.
23. The member in the minority ('the Minority') was satisfied that the decision was fair, for reasons which are explained at Paragraph 39 of the Decision.

The evidence

24. Because of the scope of the respondent's grounds of appeal, it is necessary to refer to the evidence which the tribunal received. That evidence consisted of documentary evidence and oral testimony.
25. The documentary evidence consisted of the documents contained in the respondent's bundle of documents, consisting of 92 pages. This Case Stated has to be read in conjunction with that bundle, marked "D", which is being provided along with this Case Stated. We told the parties that we would only have regard to documents within that bundle to which our attention was specifically drawn. However, our attention was in fact drawn to all the significant documents in the bundle. We received oral testimony from the following witnesses:-

(1) The applicant, who gave evidence on his own behalf.

(2) The following persons, who gave evidence on behalf of the respondent:

(a) Mr Barry Cullen,

(b) Mr John Gormley and

(c) Mr Gerard Brady

26. By letter 28 January 2003, the respondent was asked to indicate any evidence which, in the respondent's view, ought to be mentioned in the Case Stated (other than evidence which sufficiently appears from the Decision itself). The respondent replied in a letter dated 6^th February 2004. Copies of those letters are attached, marked 'E'.
27. Mr Brady was not involved in the dismissal decisions.
28. In his oral testimony, Mr Cullen confirmed that he decided that the applicant should be dismissed for the reasons specified, and in the light of the factors mentioned, in the two documents signed by him which have already been listed at paragraph 10 above. He told us that, in deciding that the applicant should be dismissed, the following factors were taken into account: Would he be able to give a sustained attendance in the future? Given the applicant's explanation during his interview with the applicant in June, Mr Cullen concluded that the applicant would not be able to provide a sustained attendance in future. Mr Cullen said he had arrived at that conclusion because of the applicant's many absences and because his overall record was poor. Mr Cullen gave the following evidence in relation to the explanation offered by the applicant during the June interview: Mr Cullen got the impression that the applicant was poorly prepared for the interview. The applicant didn't point to any evidence that he was trying to change his attendance record; instead the applicant told Mr Cullen that he, the applicant, had been unlucky (because of the 2001 football injury and because of the 2002 household injury absence). According to Mr Cullen, the applicant main line defence seemed to consist of the assertion that he had been unlucky.
29. In his oral testimony, Mr Gormley confirmed that he decided to uphold the original decision to dismiss for the reasons specified, and in the light of the factors mentioned, in the two documents signed by him which have already been listed at paragraph 10 above. He said that his involvement in the applicant's case began when he received the case papers. He checked them to see that the procedure had been carried out correctly. Mr Watson, a trade union official, represented the applicant at the appeal hearing. The appeal was a complete re-hearing. At the appeal hearing, Mr Watson had made the point that the applicant had shown his willingness to work despite the applicant's 2001 football injury. Mr Gormley told us that he regarded Mr Watson's appeal hearing presentation as basically constituting "a plea for clemency." He told us that, in considering the appeal, he had looked at the applicant's overall attendance record, including the May 2002 absence, and had concluded that he didn't think it likely that the applicant could give "sustained attendance" in the future. Mr Gormley asserted that the respondent's policy was not harsh; he stressed that the respondent required regular attendance by staff and pointed out that short term absences present a particular source of difficulty for the respondent. He confirmed that the initial Stage 3 interview (the interview which always takes place prior to any decision to dismiss) is intended for the purpose of helping the relevant decision-maker to decide whether an acceptable pattern of attendance is likely to be maintained.
30. A. At point 4 of a letter dated 25 February 2004 (see Appendix G), the respondent has suggested that paragraphs 23 to 28, of this Case Stated, should be deleted. However, those paragraphs have not in fact been deleted. The tribunal originally decided to include paragraphs 24 to 28 because perversity, and issues relating to evidence (as distinct from issues based solely on the facts found), are included in the respondent's grounds of appeal.

The requisition

31. The respondent has required the tribunal to state and sign a case for the opinion of the Court of Appeal. A copy of the applicant's Requisition is attached, marked 'F'.
32. An earlier draft of this Case Stated was circulated to the parties, so that they would have the opportunity to comment upon the draft. The applicant made no comments. The respondent made comments which are set out in a letter dated 25 February 2003, which is attached, as document 'G'. The signed version of this Case Stated takes account of the respondent's comments.
33. We decided to pose the first of the respondent's suggested questions, although we have couched it in a slightly different form (See questions 1 and 2 below.)
34. We also decided to pose the second of the respondent's proposed questions, although we have also couched that particular question in a slightly different form. (See question 3 below).
35. The Court's attention is drawn to the fact that the respondent is not content with the form or detail of the questions which the tribunal has decided to pose. The respondent considers that its own suggested questions should have been posed instead. (See point 5 of the letter at Appendix G).

The questions

36. The questions for the opinion of the Court of Appeal are as follows:-

(1) Was the tribunal correct in law in deciding that the dismissal was unfair?

(2) In deciding that the dismissal was unfair, did the tribunal, on the evidence before it, reach a conclusion which no reasonable tribunal could have reached?

(3) In concluding that the household accident of 2002 was of no value in predicting the likely pattern of future absences, did the tribunal, on the evidence before it, reach a conclusion which no reasonable tribunal could have reached?

Chairman:

Date: