Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 133/07

CLAIMANT: Patricia Buckley

RESPONDENT: Olympic Lifts Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the respondent is ordered to pay the claimant compensation of £13,236.37 .The claimant's claims for holiday pay and additional notice pay have not been made out and are dismissed.

Constitution of Tribunal:

Chairman: Ms Bell

Members: Mr Millar

Mr Irwin

Appearances:

The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The respondent was represented by Mr McGleenan, Barrister-at-Law, instructed by Murphys, Solicitors.

1. The claimant complained in her claim to the tribunal dated 5 January 2007 that she had been unfairly dismissed, not paid holiday pay for holidays taken in July 2006 and had received seven rather than eight weeks' notice pay on termination of her employment. The respondent denied that the claimant's dismissal was unfair, that she was entitled to holiday pay whilst submitting sickness certification and her claim for an additional week's notice pay.
2. Issues

The main issues to be determined by the tribunal were as follows:

(1) Is the claimant entitled to unpaid holiday pay?

(2) Is the claimant entitled to additional notice pay?

(3) Was the dismissal procedurally fair?

(4) Was the dismissal within a range of reasonable responses?

Sources of evidence

3. The tribunal considered a bundle of agreed documents and heard evidence from Ms Savage, Assistant HR Manager of the respondent company, Mr Patterson, Managing Director of the respondent company and from the claimant.

Findings of fact

4. The claimant was employed as a Credit Controller/Sales Ledger Clerk by the respondent company between 2 November 1998 and 9 October 2006. The claimant worked in the respondent's Accounts Department and was responsible for sales invoicing and credit control, her duties required approximately two hours typing at a keyboard each day and a number of telephone calls. The claimant worked four and a half days each week and received £1280.99 net per month.
5. The respondent company was set up by Mr Patterson, his father and brother and was incorporated in 1985, it is now run by Mr Patterson and his wife, and employs approximately 45 employees in connection with sales, installation and servicing of lifts. Mr Patterson handles company operations and some sales. Mrs Patterson handles company personnel and administration, including the Accounts Department managed by Mrs Susan Ritchie, the Company Accountant.
6. In January 2006, the claimant became unwell with mylitus of her spinal cord, a nerve inflammation condition causing sensation changes which affected her motor skills and manual dexterity, as a result of which the claimant was absent from work on 18 January 2006 and then from 23 January 2006 onwards. From commencement of the claimant's absence, contact was kept between her and Ms Savage. After an initial self-certification form the claimant submitted continuing doctor's certificates to the respondent, dated 30 January 2006, 9 February 2006 and 22 March 2006 confirming her doctor's advice that she refrain from work due to her condition.
7. On 27 March 2006, Ms Savage wrote to the claimant seeking her consent to the respondent obtaining a full medical report from her GP or Consultant on her current state of health and the prognosis for her future health. The claimant consented and returned the consent form required by the respondent as requested by 5 April 2006.
8. On 12 April 2006, Ms Savage wrote to Doctor Michael Watt, the claimant's Consultant, seeking a medical report on the claimant's current state of health and prognosis for her future health.
9. The respondent received Doctor Watt's report dated 26 May 2006 on 23 June 2006 after both the respondent and claimant had contacted Doctor Watt's secretary to enquire as to the delay in sending the report out.
10. Doctor Watt confirmed in his report that he saw the claimant on 31 January 2006 and reviewed her again on 28 March 2006. He stated that her condition had improved and the altered sensation was now concentrated in her fingers and her lower right arm. Doctor Watt stated that the altered sensation in the claimant's hand left her unable to use a keyboard at present, that he expected she would be able to return to work within the next couple of months and that he felt it likely that she would make, if not a full, a sufficiently good recovery to allow her to return to her previous role and that he felt her current illness was unlikely to interfere with her rendering regular service to the company in the future and that once she got back to work after her current problem that she was unlikely to need much more in the way of time off work.
11. Further, doctor's certificates were submitted by the claimant to the respondent dated 14 April 2006, 17 May 2006 and 16 June 2006.
12. On 27 June 2006, Ms Savage wrote to the claimant to confirm receipt of Doctor Watt's report and invited her to attend a meeting on Monday 3 July 2006 to take place with Ms Savage and Mrs Ritchie, to address the claimant's absence record. The letter indicated that in discussing the medical report with the claimant, the purpose of the meeting would be to explore if and when she would be in a position to return to her job and if unlikely in the near future to explore if there was an alternative position that could be offered to her more suitable to her state of health and any adjustments the respondent could reasonably make to the claimant's work arrangements or work environment which might enable her to return to work in some capacity.
13. The claimant attended a meeting on 3 July 2006 with Ms Savage and Mrs Ritchie. At the meeting, Doctor Watt's medical report was read through and the claimant asked how she was at that stage. The claimant explained that she still had tingling sensations in her fingers. When asked if there was anything the claimant could think of that would assist her return to work she explained that it would depend on a day-to-day basis what she could do. Both the respondent and claimant agreed to consider further after the meeting if there was anything that could be thought of that might be done to assist the claimant's return to work.
14. The claimant submitted further doctor's certificates to the respondent dated 14 July 2006 and 10 August 2006.
15. The respondent wrote to the claimant on 18 August 2006 to seek an up-to-date medical report from her GP to which the claimant consented and the respondent wrote to Doctor Shorten seeking a medical report on the claimant's current state of health and the prognosis for her future health on 25 August 2006.
16. The claimant submitted a further doctor's certificate to the respondent dated 7 September 2006.
17. The respondent received Doctor Shorten's report dated 30 August 2006 on 14 September 2006. Doctor Shorten confirmed:-

"Mrs Buckley presented in surgery on 18 January 2006 complaining of a sensation in her upper thighs, buttock and fingers. Over the period of the next two weeks these symptoms progressed to her upper body and she was referred for a Consultant's opinion.

She was seen by Doctor Watt, Consultant Neurologist, Royal Victoria Hospital, on 31 January 2006. Following an MRI scan, Mrs Buckley was diagnosed with mylitus of her cervical spinal cord at C3 level. I believe you have a report detailing these findings from Doctor Watt dated 26 May 2006.

Mylitus causes an nerve condition problem resulting in sensation change. Its causation is unknown and it has a variable course. There is no definitive treatment for an episode of this kind.

Over a period of several weeks, Mrs Buckley's symptoms started to resolve in reverse order.

I examined her on 23 August 2006 when she reported a heavy sensation in her hands with difficulties with fine manipulation of her fingers. There is no cognitive dysfunction. It is this hand problem that currently prevents Mrs Buckley providing effective regular service. However, given the resolution of her symptoms over the last six-month period I would be optimistic for continued improvement but feel that it may take several months yet. I would therefore expect Mrs Buckley to fully recover and be fit to render regular service in her capacity as Credit Controller/Sales Ledger Clerk.

Reoccurrence is a possibility as stated in Doctor Watt's letter. Mrs Buckley may have had a previous episode affecting her vision 20 years ago. She would be unfortunate to have a relapse in her current working lifespan."

Doctor Shorten went onto state:-

"When considered fit to resume duties, I would recommend a graduated return to full-time working on an agreed timescale with Mrs Buckley. These events have caused her some anxiety."

18. Ms Savage wrote to the claimant on 20 September 2006 recapping the steps taken by the respondent to date in respect of the claimant's long-term sick absence up to receipt of her GP's report on 14 September 2006 and stating that the respondent considered that it had taken necessary steps to explore all potential available options within the business, in particular with regard to modifying the way in which the claimant's job was structured, changing the claimant's particular duties within her role, providing training or redeployment to another position and allowing time off for rehabilitation. The respondent set out in its letter that in light of medical guidance and the prognosis provided by the claimant's Consultant and her GP it was not aware of any method by which it could make adjustment to her post in order to accommodate her return, that because her job was computer-based and required her to be in a position to record things in writing a change to her duties was not an option, and that re-training or redeployment was not an option.

The respondent went on to state:-

"At this stage we have provided a significant period of time off for rehabilitation, in the hope that your condition would improve to the extent that would facilitate your return to work. In light of your most recent report from your General Practitioner, of which you have had sight, you will probably not be in a position to return to the workplace for the foreseeable future and certainly not for several months time.

We have also considered whether or not it would be possible for you to engage in phased return to work, however unfortunately your medical experts are not recommending a return to work at this stage and do not see it as an option for several months to come. Flexible working is another issue we have considered and again it is not an option presently due to your health."

19. To address the claimant's absence record the respondent invited her to a second meeting on 28 September 2006 when it proposed to discuss with the claimant the contents of her GP's report and to explore when she would be in a position to return to her job with the company or if there was any alternative position that could be offered more suitable to her state of health. The respondent in its invite indicated that it was highly unlikely that they would be discussing termination of employment as a result of the claimant's capability to carry out her current position within the company.
20. The claimant attended the meeting on 28 September 2006 with Ms Savage and Mrs Ritchie. Doctor Shorten's report was read through and the claimant explained that she still had the sensations from her fingers down but that just that week there had been an improvement in that she had been able to blow dry her hair having previously been unable to do so. The claimant expressed to the respondent that she was hopeful to return to work but would need to do so gradually and to be able to say when she felt she would be able to return to work she would need to do a trial to establish what she was capable of. The claimant suggested to the respondent that she come back to work in the mornings from 9.00 until lunchtime to see what she could do.
21. Ms Savage put to the claimant that they had considered modifying the way in which the claimant's job was structured but that unfortunately in light of medical guidance and the prognosis provided by the claimant's Consultant and also her GP they were not aware of any method by which they could make an adjustment to her post in order to accommodate her return. Ms Savage put to the claimant that at the last meeting they had sought her suggestions on this point but that there was nothing that the claimant had been able to think of and enquired whether since then she had thought of any reasonable adjustments that they could make to her position. The claimant suggested a graduated return so she could see what she could do. Ms Savage however pointed out that they had considered whether they could change the particular duties within the claimant's role but unfortunately as her job was computer-based and involved recording things in writing a change to her duties was not an option. The claimant was asked whether she had thought of any changes they could reasonably make. The claimant explained that she could not honestly say, that it would be trial and error as to what she could do on a keyboard. It was suggested to the claimant that she might try out using the keyboard on her computer at home to see what she could do.
22. Ms Savage informed the claimant that they had examined, in detail, and in terms of their present business needs providing re-training or redeployment to another post but that this was not an option, particularly in light of the role in which she was presently engaged. No explanation was given to the claimant as to the business needs of the respondent company or why it was not an option. Reference was made to the position of Administration Assistant being available but that it would not be suitable for the claimant due to there being quite a bit of typing involved. The job description for the Administration Assistant post was not discussed in any detail with the claimant.
23. Ms Savage then put to the claimant that at that stage they had provided a significant period of time off to her for rehabilitation in the hope that her condition would improve to the extent that would facilitate her return to work, but that in light of her most recent report from her GP that the claimant would probably not be in a position to return to the workplace for the foreseeable future and certainly not for several months. Ms Savage informed the claimant that they had considered whether it would be possible for her to engage in a phased return to work, however that the claimant's medical experts were not recommending a return to work at that stage, and that the respondent did not see it as an option for several months to come, she also indicated that flexible working was another issue which the respondent had considered but again this was not considered to be an option at that time due to the claimant's health.
24. The claimant pointed out to Ms Savage and Mrs Ritchie that her Consultant had advised that when she felt her fingers could cope that that was an indication that she was getting better and that she was in fact fine in the mornings for a few hours now and for the first time she had been able to wash her hair that week, but in her opinion it would however be at least another month before she would be looking at a graduated return to work.
25. Ms Savage assured the claimant that the letter sent to her requesting her to attend the meeting was not intended to make her think that termination was the only option. At the close of the meeting the claimant arranged to let Ms Savage know how she got on with her doctor the following Tuesday and Ms Savage confirmed to the claimant that there were things she had raised at the meeting that were not mentioned in her GP's report and they would now have to now consider them.
26. On 4 October 2006, Ms Savage telephoned the claimant to enquire how she had got on with her doctor and asked if any indication had been given to her in respect of her return to work. The claimant replied that she would not know what she would be capable of until she tried and that would be up to the company, she explained that she had been given another four weeks' sick line. The call concluded with Ms Savage arranging to keep in touch with the claimant.
27. On 9 October 2006 following a decision by Ms Savage and Mr Patterson to dismiss the claimant the respondent sent to the claimant a letter terminating her employment on the grounds of long-term incapacity for work on 9 October 2006, stating in the termination letter that in light of the claimant's most recent GP report she would probably not be in a position to return to the workplace for the foreseeable future and certainly not for several months time. The claimant was paid seven weeks' pay in lieu of notice.
28. On 13 October 2006 the claimant appealed the dismissal decision to Mr Patterson on the grounds that the decision was rushed and premature and that she had stated her desire to return and that her recovery was likely to be sooner than had been suggested by the respondent. The claimant also sought unpaid holiday pay for holidays taken by her during her sick absence.
29. By letter dated 25 October 2006 the claimant was invited to an appeal meeting to be held on 31 October 2006 with Mr Patterson, accompanied by Ms Savage to record minutes, it was however re-arranged to take place on 13 November 2006.
30. At the appeal meeting on 13 November 2006 the claimant took issue with the respondent's interpretation of the medical evidence, that they waited only six weeks before dismissing her based on a report dated 30 August 2006, that they did not wait until the end of her sick line on 10 November 2006, that the respondent could have made a further approach to her GP if there was any ambiguity over when she was considered fit to return to fill her duties, and that the respondent did not accommodate the claimant's suggestion of a trial or phased return starting with her working a half day in the mornings.
31. The claimant explained to Mr Patterson that she had suggested a half day phased return to work to assess how she could cope with the job and put it to Mr Patterson that surely a phased return was better than the company having to cope entirely without her. During the claimant's absence her work had been re-distributed amongst current employees and one employee was paid an additional £250 per month to compensate her for additional duties placed upon her, no employee was required to work any overtime.
32. Mr Patterson considered that the GP's report was unclear as to when the claimant might be able to return to work but chose not to re-approach her GP for clarification of what 'several months' meant and rejected the claimant's suggestion of an initial return on half days as he was only prepared to have her return on a full-time basis.
33. By letter dated 20 November 2006 Mr Patterson confirmed to the claimant that the dismissal decision remained.
34. The claimant registered with at least six recruitment agencies from October 2006 onwards for book-keeping positions, but at the date of the hearing had obtained only two part-time temporary positions and was only seeking three days work per week .The claimant earned £1747.80 from termination of her employment until the hearing date.
35. As at the date of hearing no replacement employee had been engaged to fill the claimant's position.

Relevant Legislation

36. Employees' entitlement to annual leave and payment in respect of periods of leave are provided for under the Working Time (Northern Ireland) Regulations 1998 Part II Articles 13 & 16.
37. Employees' entitlement to minimum notice on termination of employment is set out at Article 118 of the Employment Rights (Northern Ireland) Order 1996.
38. The relevant law relating to unfair dismissal is set out at Articles 126 and 130 of the 1996 Order.
39. Under Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer. Capability is a potentially fair reason for dismissal of an employee and where it is shown by the employer as the reason for dismissal, Article 140(4) provides that the determination of the question whether the dismissal is fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with the equity and the substantial merits of the case.

Application of the law to the facts found

40. It was held by the Court of Appeal in Commissioners of Inland Revenue -v- Ainsworth [2005] IRLR 465 that statutory paid holiday entitlement does not continue to accrue when an employee is off on long-term sick leave. The tribunal is satisfied that the claimant's claim for unpaid holiday pay is not made out and it is accordingly dismissed.
41. The tribunal is satisfied on termination of her employment the claimant received the required statutory minimum period of notice under Article 118 of the 1996 Order, the claimant at that time having only seven years continuous employment, and that her claim for unpaid notice fails and is accordingly dismissed.
42. It is established that in cases of absence due to ill-health the approach of the employer is to be based on sympathy, understanding and compassion.
43. In submissions the tribunal was referred to Harvey Section D on Incapability arising from ill-health. Paragraph 1207 provides that the starting point for analysing the duty of the tribunal in deciding whether or not the dismissal is fair is the EAT's decision in Spencer v Paragon Wallpapers Limited [1976] IRLR 373 and in that case Philips J emphasised the importance of scrutinising all the relevant factors:-

"Every case depends on its own circumstances. The basic question which has to be determined in every case is whether in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?"

Relevant circumstances include:-

"The nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do."

44. Paragraph 1209 states:-

"There is a conflict between the needs of the business and those of the employee, and the tribunal must be satisfied that the employer has sought to resolve that conflict in the manner which a reasonable employer might have adopted, and, in the course of doing this he will have to show that he carried out an investigation which meant that he was sufficiently informed of the medical position."

45. Firstly, considering whether the respondent was adequately informed and the dismissal procedurally fair, the tribunal is not satisfied that the respondent carried out an adequate investigation which then meant it was sufficiently informed of the claimant's medical position. In view of the claimant informing Ms Savage and Mrs Ritchie at their September meeting of the improvement just that week in her condition and furthermore particularly in light of Mr Patterson's acknowledgement that he considered the GP's report unclear as to when it was thought the claimant would be fit to return to work, the tribunal considers, although the respondent took steps to consult with the claimant in arranging meetings in July and September, and purports to have carried out all 'necessary and reasonable steps' in terms of her absence, including looking at adjustments it could reasonably make which might have enabled the claimant's return in some capacity, that this was not genuinely done by the respondent and the respondent chose not to investigate the claimant's medical position any further or to accommodate her in assessing what she was fit to return to do by a trial return, Mr Patterson having given evidence that he was only prepared to have the claimant return on a full-time basis. The tribunal are of the view that the respondent was not adequately informed in making the decision to dismiss at the time it did.
46. In deciding whether dismissal was a fair sanction and within a range of reasonable responses, the tribunal was referred to the case of Luckings v May & Baker Limited [1974] IRLR 151. The tribunal however consider the circumstances of this case to differ. The medical evidence based on the claimant's last examination in August 2006 was supportive of the claimant being able to return fully to her duties and indicated likely duration of her continuing absence to be several months from then and the claimant was seeking a trial return to work so as to assess her capability to return fully to her duties.
47. In light of the size of the respondent's company and the respondent having absorbed the claimant's work within its current workforce, and having coped without replacing the claimant without great apparent difficulty, the likelihood that the claimant would have been capable of returning to work soon and the claimant's seven years of service, the tribunal do not consider that the respondent's decision to terminate the claimant's employment on grounds of incapacity was within a range of reasonable responses and do not consider that the respondent acted reasonably in treating the claimant's incapacity as a sufficient reason for dismissing the claimant at that time.

Remedy

48. The claimant sought compensation only.
49. The claimant is awarded the following:-

Basic award - calculated in accordance with Article 153 of the 1996 Order:-

£290.00 (statutory maximum pay) x 1.5 (factor based on age)

x 8 (years of continuous employment) = £3,480.00

Loss of statutory rights = £ 290.00

Compensatory award - calculated in accordance with Article 157 of the 1996 Order which provides the amount of compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.

Loss of salary from termination to date of hearing

The tribunal do not consider the claimant has lost her full monthly salary as a result of her unfair dismissal by the respondent. The claimant gave evidence that she is seeking employment only for three days per week, whereas she worked for four and a half days per week for the respondent. On this basis, the tribunal consider it just and equitable that she receive 66% of her net monthly salary for each month from the effective date of termination to the date of last hearing on 27 June 2007.

£1,280.99 (net monthly salary) x 7 months x 66% = £5,918.17

Less the agreed figure for earnings by the claimant

between the effective date of termination and

last hearing date = - £1,747.80

lost salary = £4,170.37

Future loss

The tribunal consider it just and equitable to award the claimant compensation for one year's future loss in view of the difficulty it is anticipated the claimant may have in securing alternative employment in view of her experience to date. Again the tribunal considers it is just and equitable that future loss be awarded at 66% of her net monthly salary.

£1,280.99 (net monthly salary) x 12 months x 66% = £10,145.44

Less anticipated future earnings of

£404.12 per month x 12 = - £ 4,849.44

Future loss = £ 5,296.00

Conclusion

50. The tribunal is satisfied that the claimant's claims for holiday pay and additional notice pay have not been made out. The tribunal considers that the claimant was unfairly dismissed, the respondent not having been adequately informed of the claimant's medical position at the time of dismissal and that the decision to dismiss was not in light of all the circumstances within a range of reasonable responses.
51. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 18 May 2007, 18 June 2007 and 27 June 2007, Belfast

Date decision recorded in register and issued to parties: