Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 430_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 430/10

CLAIMANT: Maurice Alexander Rainey

RESPONDENT: Royal Mail Group Limited

DECISION

The unanimous ~~decisio~~n of the Tribunal is that the dismissal of the claimant was unfair but that the claimant’s contribution to his dismissal was 100 per cent and that no compensation is appropriate.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr P Laughlin

Ms F Graham

Appearances:

The claimant appeared and represented himself

The respondent was represented by Rachel Best, Barrister-at-Law, instructed by Napier and Sons Solicitors.

The Claim and the Defence

1. The claimant lodged a claim on 16 February 2010 claiming that he had been unfairly dismissed by the respondents.

1.1 The respondents presented a response on 30 April 2010 denying the claimant’s claim in its entirety.

Facts

2. The Tribunal found the following facts agreed or proven on a balance of probabilities:

2.1 The claimant commenced employment with the respondents in 2000. There was a difference of opinion between the claimant and the respondents in respect of the claimant’s actual start date. The claimant contended he had started working for the respondents sometime in May 2000 at which point he was put on a trial period until October 2000. However the respondents produced the claimant’s absence record which stated that his date of employment was 24 July 2000 a date which they claimed they had taken from the claimant’s contract of employment.

2.2 No copy of the claimant’s contract of employment was produced by either party. The Tribunal concluded, in view of the uncertainty around other dates provided by the respondent during the course of this hearing, that there was no obvious reason to doubt the claimant’s view that he had commenced his employment in May 2000.

2.3 The claimant was employed by the respondents as an operational postal grade and worked nightshifts at the sorting office in Belfast. He was dismissed on 7 December 2009 on the basis ofn his unsatisfactory attendance. The claimant appealed against this decision but was advised by letter dated 29 January 2010 that his appeal had been unsuccessful.

Events Leading up to the Dismissal

2.4 The respondents’ attendance procedure consists of three stages to which three different standards of attendance applied. The stages are progressive and are designed to assist employees to maintain appropriate attendance levels. There are three discrete stages in the attendance procedure and these are set out as follows:

2.5 Stage 1 – this is triggered if there have been four absences or one 14 day absence in a 12 month period. At this stage the employee is invited to attend an interview with his manager and is required to give an explanation for his absences. If deemed appropriate the employee is issued with a Stage 1 warning.

2.6 Stage 2 – this is triggered if there is either two periods of absence or a single period of absence of ten days in any six month period in the next 12 month period. At Stage 2 the employee is interviewed again and a Stage 2 warning may be issued.

2.7 Stage 3 – this is called the dismissal stage. An employee reaches this stage if he incurs a further two absences or a single absence of ten days or more within any six months in a 12 month period after a Stage 2 warning has been issued to him. At this stage the employee is again called to interview where his absence is discussed.

2.8 Underpinning the respondents attendance procedure are the tenets that all sick absences are treated as genuine and that at each stage of the process the employee will have the opportunity to offer and have considered mitigating circumstances. An example of such mitigation is if the employee has an underlying medical condition.

Stage 1

2.9 The relevant periods of sick absence which triggered Stage 1 for the claimant were five days in September 2007 and nine days in March 2008. This made a total of 14 days and in line with the procedure this combined period of absence triggered a Stage 1.

2.10 By letter dated 16 April 2008 the claimant was invited to attend a Stage 1 interview. However, in the body of this letter the claimant was in fact invited to attend an interview at 23:15 on 15 April 2008.

2.11 The Tribunal was furnished with a document entitled “Summary of Interview” dated

16 April 2008 which contained the notes of the Stage 1 interview between the claimant and his then line manager Mr Jim McCourt. At the interview, which took place on the night of 15 April 2008 and referred to an earlier such meeting having taken place on 7 April 2008, Mr McCourt advised the claimant that he had breached the standards of attendance expected of him as a Royal Mail employee and made reference to the specific periods of absence that had triggered the
Stage 1.

2.12 At this stage the claimant was accompanied by a colleague Mr Lillie and mitigating circumstances were offered on the basis that the claimant believed that the first period of absence, 3 September 2007 to 11 September 2007 had fallen outside the timescale for activating the Stage 2. This was on the basis that the claimant believed that this first period of absence of nine days was less than the ten day minimum standard he had had to adhere to during a Stage 1 warning he had incurred in February 2007.

2.13 The claimant did not accept that although these nine days had not triggered a Stage 2 that they could be calculated towards a subsequent Stage 1 warning. Mr McCourt stated he would seek clarification on this and subsequently made contact with the Sick Absence Manager, Miss Collette Walker, who in turn contacted Human Resources in Sheffield. The interview notes added that Sheffield had since written back stating that the Stage 1 should be issued.

2.14 Mr McCourt also noted that the claimant offered up no other mitigating circumstances in his defence except to say that he believed he was being treated unfairly.

2.15 Mr McCourt went on to advise the claimant of the availability of the employee Health Services and emphasised that a persistent failure to achieve the standards (of attendance) may ultimately result in dismissal. The claimant confirmed that he understood what the outcome could be for him.

2.16 In the event Mr McCourt wrote to the claimant on 16 April 2008 advising him that a Stage 1 warning had been issued against him.

2.17 The Tribunal noted a document entitled Attendance Procedure Warning Facing Sheet. This indicated that a Stage 1 warning had been issued and the document was dated 15 April 2008. The document also had a handwritten note on it saying “no trigger on system”.

2.18 The Tribunal noted the discrepancies in the dates on the documentation (16 April 2008) and the date of the Stage 1 meeting which was 15 April 2008. In his subsequent appeal and in this hearing it was the claimant’s case that the decisions to issue the Stage 1 warning was pre-empted, that is to say that the decision was reached before the interview had taken place.

2.19 The respondents offered an explanation in respect of the discrepancies in the dates on the documents and of the meeting interview for the Stage 1 meeting. This was that when a stage in the attendance procedure was triggered the manager accessed a computer generated bundle of documents to be used throughout the stage process. These documents would be issued by the computer on the date the manager accessed them. The explanation in relation to the discrepancies at the claimant’s Stage 1 was that Mr McCourt had accessed the bundle of documents on 16 April 2008 which included a pro-forma invitation to interview, even though the interview itself occurred on 15 April 2008. As the interview had occurred at 23:15 on 15 April 2008 the computer had changed the dates on the documentation to read 16 April 2008 after midnight.

2.20 The respondents’ witnesses expressed no surprise at the discrepancies that had occurred in the dates on the documentation and it became clear that such discrepancies were not unusual.

Stage 2

2.21 The claimant remained at work on his return in March 2008 (apart from one day which was not counted as a sick absence), until 26 September 2008. At this stage the claimant went off on sick leave for eight days and returned to work on or about 4 October 2008.

2.22 The claimant went off on sick leave again on 22 January 2009 and remained on sick leave until 20 February 2009, a period totalling 29 days. As a result the claimant was invited to attend a Stage 2 interview on 2 March 2009 at 23:15.~~pm.~~

2.23 The Tribunal saw a document entitled “Attendance Procedure Stage 2 Warning, Summary of Interview dated 27 February 2009. This document made it clear that an interview had occurred on 2 March 2009 as per the invitation letter but that this meeting had been adjourned to obtain a medical report from Atos Origin, Medical Service providers to the respondents.

2.24 As a consequence of the adjournment the meeting which began on 2 March 2009 was not concluded until 7 March 2009 at which point the Atos Report had become available. The claimant and his manager Mr Reid signed this report on 7 March 2009. The claimant subsequently received a letter dated 27 February 2009 advising him that as a result of his interviews on 2 and 7 March 2009 he had been issued with a Stage 2 warning.

2.25 The Tribunal saw a document entitled “Attendance Procedure Warning Facing Sheet”. This document indicated that the claimant had been issued a Stage 2 warning on 3 March 2009, some four days before the conclusion of the Stage 2 interview.

2.26 Again the respondents proffered the explanation that when an employee triggers any stage in the attendance procedure the relevant line manager accesses computerised pro-forma documentation for each stage of the process, all of which is dated at the time of the trigger. Most managers then amend the date at the top of the relevant document as he uses it but some do not. In this case the claimant’s line manager, Mr Reid had accessed the pro-forma documentation on 27 February 2009 and the computer dated all documentation accordingly. However the Tribunal received no explanation as to why the Attendance Procedure Warning Facing Sheet was dated 3 March 2009.

2.27 This was the second instance where the claimant claimed that the decision to issue him with a warning preceded either his interview or any investigation. Again the respondent’s witnesses showed no surprise or undue dismay at the misdated documentation and made it clear that this was not a particularly unusual mix-up.

2.28 However unhelpful all this appeared to the Tribunal there was no evidence brought by the claimant, or at all, to suggest that there was another sinister reason for the misdated documentation, for example that the decisions to issue the warnings were reached before interview or investigation.

2.29 On the contrary the evidence indicated that at both Stages 1 and 2 the interviews were suspended in order to permit the claimant opportunity to provide evidence of mitigating circumstances and thus to facilitate him.

Stage 3

2.30 The claimant returned to work in February 2009 and was next absent on sick leave on 23 June 2009 until 4 September 2009, a period of 73 days. By letter dated

13 October 2009 the claimant was advised that consideration was being given to his dismissal on the grounds of his unsatisfactory attendance and inviting him to attend an interview on 19 October 2009 to discuss why he should not be dismissed.

2.31 This meeting was subsequently postponed to 26 October. On that occasion the claimant was represented by Mr Malachy McGuigan, a member of the Communications Workers Union, who briefly met the manager dealing with the Stage 3 interview, Mr James Campbell, and advised him that some paperwork was missing from the bundle of documents given to the claimant in preparation for the interview. The paperwork in question was details of the claimant’s full record of absences and warnings. Mr Campbell undertook to locate the absent paperwork in question and was unable to do so and advised Mr McGuigan of this at their subsequent meeting on 28 October 2009.

2.32 At this first meeting on 26 October 2009 Mr McGuigan gave Mr Campbell a document entitled “Points of Mitigation, Maurice Rainey at Stage 3 attendance procedure”. This document noted eight points of mitigation for Mr Campbell to take into account. At the meeting which took on 28 October 2009 Mr McGuigan gave
Mr Campbell another document entitled “Points of Mitigation, Maurice Rainey at Stage 3 attendance procedure” with an additional three points of mitigation on it.

2.33 At the Stage 3 interview the claimant referred to a medical report by his own doctor which he believed would suggest that his most recent illness was connected to previous illnesses and thereby constituted “an underlying medical condition”, which circumstance would have amounted to “mitigating circumstance”. The medical evidence from Atos available at that point, in a report dated 28 September 2009, indicated that there was no such underlying cause.

2.34 However, in another report from Atos the respondents were advised that Atos were writing to the claimant’s own doctor for further medical evidence but that the claimant had stated that he was now capable of performing his normal duties. Mr Campbell offered the claimant a week to obtain his doctor’s report to support this contention; the claimant accepted this and the meeting was adjourned to facilitate this.

2.35 By letter dated 13 November 2009 Mr Campbell wrote to the claimant to advise him that he had still not received the claimant’s doctor’s report and indicated that if this report was not with Mr Campbell by 26 November 2009 that Mr Campbell would have no alternative but to reach a decision in relation to the claimant’s dismissal based on the evidence he had at hand.

2.36 The claimant stated that throughout the weeks after his stage 3 interview he had made strenuous efforts to obtain this report from his doctor but was unsuccessful. However during the course of this evidence the claimant indicated that he lived a very short distance from the doctor’s surgery the claimant was at a loss to explain why he had not attended the surgery, with Mr Campbell’s letter to demonstrate the urgency of his need for the report.

2.37 In the interim Mr Campbell had sought to obtain the medical report himself. He had contacted the Sick Absence Manager, Ms Collette Walker, and asked her to see if she could obtain the report through Atos Origin. Ms Walker was unsuccessful in this.

Mr Campbell’s Conclusions

2.38 In the event that the claimant’s doctor’s report was not furnished to him Mr Campbell proceeded with the matter. He gave consideration to the points of mitigation as raised by the claimant and canvassed these in some detail in a document dated 2 December 2009. However there were some discrepancies in this document that were accepted by Mr Campbell. These included a reference to the amount of absences the claimant had had for an eye injury, where twelve absences were noted instead of one.

2.39 A further discrepancy was a reference to a Stage 1 warning being issued to the claimant in October 2000 when no such warning had been issued. A further discrepancy was that in the middle of Mr Campbell’s report and under a paragraph entitled “All attendance penalties triggered/ issued and not issued”, Mr Campbell had written “Mr McLaughan” where this should have read “Mr Rainey”, the claimant.

2.40 Mr Campbell’s report contained a comment to which the claimant took strong objection and subsequently raised on his appeal. Mr Campbell’s report stated, under the heading of “Complete Attendance History of Mr Rainey”,

“Since Mr Rainey joined Royal Mail in 24 July 2000 he has had 32 absences totalling 280.5 days. He triggered his first Stage I warning in October 2000, three months after his employment commenced, and the only time Mr Rainey came off the attendance procedure was in 2003 and 2006, but has been sick every year since he started. Mr Rainey has also had an excessive amount of special leave absences since his employment commenced, the most recent being in November 2009, this may well have been an attempt to mask his sick absence”.

2.41 The claimant submitted that the first two errors in Mr Campbell’s report had adversely influenced Mr Campbell about the claimant’s actual periods of absence and that they subsequently adversely influenced the appeals manager on appeal. He submitted that Mr Campbell’s report was procedurally flawed by virtue of these discrepancies.

2.42 The Tribunal noted that Mr Campbell accepted the discrepancies and made no effort to dissemble. He readily agreed with the claimant that the report was imperfect but did not accept that it was so flawed as to be procedurally improper or fatally incorrect.

2.43 The Tribunal accepted that the errors in Mr Campbell’s report were unfortunate but arose out of human error.

2.44 The claimant received a letter dated 7 December 2009 indicating that Mr Campbell had concluded that the claimant’s attendance record was unacceptable, was unlikely to improve in the foreseeable future and that there were no mitigating circumstances that would make it unreasonable to dismiss him. This letter advised the claimant that he had a right to appeal this decision which the claimant did that same day.

2.45 In the event the claimant’s doctor’s report was sent to the respondents on

8 December 2009. It was the claimant’s view that Mr Campbell had issued his decision on 7 December to avoid having to take account of Dr Khanna’s report and thus had put him at a disadvantage. However there was no evidence to suggest that Mr Campbell was aware that the doctor’s report would arrive with the respondent on 8 December. The Tribunal noted the evidence that Mr Campbell had sought to facilitate the claimant by giving him over a month to obtain this report.

The Appeal

2.46 The claimant’s appeal was heard on 20 October 2010 by Simon Walker, Appeals Casework Manager. The claimant was accompanied by Mr Norrie Watson, CWU. The claimant made five specific points on his appeal.

2.47 The first of these was Mr Campbell’s remark that the claimant may have used special leave absence to mask further bouts of sick absence. Mr Watson advised Mr Walker that the purpose of the special leave taken by the claimant in November had been to care for the claimant’s wife. Mr Walker upheld this point of appeal and recorded that his decision would be based solely on sick absences taken by the claimant.

2.48 The second appeal point raised was the concern that Mr Campbell had communicated his decision (to issue the Stage 2) the day before the claimant’s doctor’s report had been made available to the respondents. Mr Watson acknowledged the fact that Mr Campbell had delayed his decision on a number of occasions but the concern was that the decision to issue the decision on
7 December 2009 was in some way prompted by the fact that the doctor’s report became available on 8 December 2009. Mr Walker found no evidence to suggest that this had been other than a simple coincidence with no ulterior motive.

2.49 The third appeal point was that the medical report from Dr McGread, of Atos dated 24 December 2009 superseded all the other medical evidence in the case and indicated that the claimant had an underlying medical condition (which would have amounted to a mitigating circumstance under the attendance procedure). However Mr Walker considered the point and concluded that this report and the previous report agreed that the claimant’s absences over the years have been unrelated, it was unlikely that any of his conditions would fall under the Disability Discrimination Act and that he was currently fit for work and rejected this point of the appeal

2.50 Mr Watson raised as the fourth point on appeal the fact that the paperwork appeared to indicate that the decision to issue the Stage 1 was taken at the end of the Stage 1 interview. However Mr Walker examined the paperwork and determined that as the interview notes had been typed that Mr McCourt would not have been able to have produced them immediately and noted that Mr McCourt had sought advice before taking his decision to issue the Stage 1.

2.51 Mr Watson went on to submit that the claimant was a well thought of member of the working team at Belfast and that he had a young family to support.

2.52 However, although Mr Walker took this into account he rejected the appeal on a number of bases. The first of these was his examination of the claimant’s full record of absences and his conclusion that he did not believe that the claimant would ever be able to meet the minimum standards of attendance expected of employees and that his previous absence record was an indicator of his likely future attendance pattern.

2.53 This conclusion was one plank of Mr Walker’s decision to reject the appeal. The other was the balancing exercise he did, weighing up the severity of the penalty of dismissal and its catastrophic impact on the claimant and the responsibility of the respondents’ duty to its customers and its consequent need to be able to depend on its employees. Into this exercise Mr Walker added the consideration that the purpose of the attendance procedure, in its being progressive, in its setting agreed minimum standards and in its offering employees every opportunity to show that they can meet those standards before drastic action is taken against them, strikes that balance.

2.54 However, Mr Walker also concluded that in the circumstances where the respondents need for a reliable attendance record posed a particular issue and in view of the claimant’s persistent failure to meet the minimum standards that the respondents could say “enough is enough”, and he rejected the appeal.

2.55 The Tribunal noted that the most recent medical report from Atos, dated

24 December 2009, indicated, amongst other things, that the claimant had developed a genuine mental health problem in June 2009 and that this had led to 73 days absence from work. The report also indicated that following an assessment of the claimant and a review of his sickness absence records and occupational health files there was evidence to suggest an underlying disease process related to an emotional health problem.

2.56 The Tribunal also noted that the report also indicated that the claimant had also had periods of sickness absence due to a variety of acute illnesses or injuries which appear medically unrelated. The report also added that there was no obvious medical reason to doubt the claimant’s capability for regular and reliable service in the future. The report added a note of caution, which was the potential ill effect on the claimant’s mental health relating to the uncertainty surrounding his employment.

2.57 The Tribunal concluded that Mr Walker’s conclusions did not take proper account of the medical evidence or properly explain why this evidence was not to be considered as evidence of an underlying medical condition that could have amounted to mitigating circumstances.

The Law

3. Unfair Dismissal

The Employment Rights (Northern Ireland) Order 1996 provides at Article 126,

Paragraph 1:-

“An employee has the right not to be unfairly dismissed by his employers.”

The Order goes on to state at Article 127, Paragraph 1(C):-

“For the purpose of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) and Article 128, only if) –

(a) the contract under which he is employed is terminated by the employer (whether with or without notice).”

Article 130 of the Order goes on to state that:-

“(1) In determining ... whether the dismissal of an employee is fair or unfair it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

Article 130(4) goes on – “Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) 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

(b) shall be determined in accordance with equity and the substantial merits of the case”.

Case Law

4. The Tribunal considered the following case law:-

Iceland Frozen Foods Limited v Jones 1993 ICR 17,

British Homes Stores Limited v Burchill 1978 IRLR 379 EAT and the guidance set out in the Court of Appeal in Rogan-v-South Eastern Health and Social Care Trust (2009) NICA.

The Tribunal’s Conclusions

5. The law on the Tribunal’s role in unfair dismissal cases is very clear. Having established that the employer had a reasonable belief, at the relevant time, in the misconduct or, as here, the inability of the employee to do their duty, as charged and that the employer has conducted a reasonable investigation and that the employer’s response is within the band of reasonable responses the Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view of any of this.

5.1 The Tribunal noted that the dismissal of the claimant fell to be considered as a “capability” issue rather than a “conduct” issue.

5.2 The Tribunal accepted that the effect of the respondents’ absence procedure was, notwithstanding the otherwise good work of an employee when present, that the failure to meet attendance standards could ultimately trigger a Stage 3 and potentially lead to dismissal. This is in essence the difference between a “capability” type dismissal and a “conduct” type dismissal. In capability cases even “good” employees can fall below the standards required of “capable”, those deemed to be unable to meet the minimum attendance standards.

5.3 In this case the claimant sought to suggest that his dismissal was unfair on the basis that the respondents had failed to consider circumstances of his absences that would have militated against dismissal – including the fact that the most recent Atos report had stated that there was evidence to indicate that there was an underlying disease process relating to an emotional health problem.

5.4 As the Tribunal noted above, the respondents concluded that this last medical evidence merely stated what the preceding reports had said, including the fact that the claimant was fit to work. However the Tribunal did not accept that either of these statements properly took account of the fact that this medical evidence clearly stated that there was an underlying disease process relating to an emotional health problem or explained why the respondents failed to consider this as mitigating circumstances.

5.5 The Tribunal had to consider whether this fact was sufficient to render the dismissal of the claimant unfair. In considering this point the Tribunal had regard to whether the respondents had a sufficiently reasonable belief in the claimant’s inability to meet the attendance standards at the point at which they dismissed him. The Tribunal concluded that although the respondents had conducted what appeared to be a reasonable investigation this was invalidated by their failure to give any or any proper consideration to one of the tenets of their own procedure, the need to consider mitigating circumstances.

5.6 The Tribunal concluded that it was of some significance that this aspect of the attendance procedure was overlooked, or not given proper consideration, at a time when the appeal manager stated that he believed that the respondents had reached the stage where they could reasonably say, “enough is enough”. The appeal manager stated this to be the case in light of his balancing the length of the claimant’s sick absences against the respondents’ need for reliable workers and its duty to deliver the mail. However what was missing from this equation was the mitigating circumstance of the claimant’s underlying medical condition, as stated by the respondents’ own medical report as, in the Tribunal’s view the appeal manager did not take it into account.

5.7 The Tribunal concluded that the respondents formed a belief that the claimant was not capable of achieving the minimum attendance standard without any regard to the mitigating circumstance of the claimant’s underlying medical condition and concluded therefore that they had failed properly to apply its own attendance procedure. In such circumstances the Tribunal concluded that their decision to dismiss the claimant was unfair.

Contributory Fault

5.8 The Tribunal went on to consider the degree if any the claimant contributed to his own situation. The Tribunal noted that the claimant’s underlying medical condition accounted for only part of the claimant’s considerable amount of sick absences and that these were significant even when the mental health aspects of the claimant’s sick absences were discounted.

5.9 The Tribunal also noted that, in that part of the claimant’s case were he sought to persuade the respondents that the Stage 1 had been improperly triggered, (September 2007), the claimant had taken a sick absence of nine days, just within the 10 day limit necessary to keep at the Stage 1 level. The Tribunal concluded that the length of this absence was not coincidental and was calculated by the claimant to keep him, as he thought, off the attendance procedure.

5.10 The Tribunal also took into account the claimant’s tardiness in obtaining his doctor’s report and the lack of effort he made in getting that report to the respondents in the generous amount of time they gave him to provide it. The Tribunal concluded that this delay was more culpable given the fact that the claimant lived almost adjacent to the doctor’s surgery.

5.11 In these circumstances the Tribunal concluded that the claimant had very significantly contributed to his own dismissal and measured this contribution at 100 per cent.

5.12 Accordingly the Tribunal finds the dismissal of the claimant to be unfair but that the claimant’s contribution to this dismissal is 100 per cent and that no compensation is appropriate.

Chairman:

Date and place of hearing: 16 -17 August 2010, Belfast

Date decision recorded in register and issued to parties: