704_12IT
THE INDUSTRIAL TRIBUNALS
CASE REF: 704/12
CLAIMANT: Andrew Mills
RESPONDENT: Queen’s University Belfast
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claim is therefore dismissed in its entirety.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr B Heaney
Mr T Carlin
Appearances:
The claimant appeared and was represented by Mr O Friel, Barrister-at-Law, instructed by Philip Gallen & Co, Solicitors.
The respondent appeared and was represented by Mr J Kennedy, Barrister-at-Law, instructed by Pinsent Masons, Solicitors.
THE CLAIM
1. The claim was a claim of unfair dismissal.
THE ISSUES
2. The issues to be determined by the tribunal were as follows:-
(a) The tribunal had to determine whether the statutory dismissal procedure had been completed. If not, whether the respondent was responsible for such non-completion and whether the dismissal of the claimant was thereby rendered automatically unfair.
(b) In the event that the tribunal found that the statutory dismissal procedure had been completed, it would have to determine whether, in all the circumstances, the dismissal of the claimant was fair or unfair.
(c) In the event that it found the dismissal of the claimant to be unfair, the tribunal had to determine the appropriate remedy. The claimant sought compensation only.
SOURCES OF EVIDENCE
3. The tribunal heard oral evidence from the claimant and from Frances Dalcz, Gary Jebb, John Gormley and Sonya Dougherty on behalf of the respondent. In the course of the hearing, the parties also referred the tribunal to a number of documents in the bundle prepared for the hearing. Generally, there was little dispute between the parties in relation to the facts of this case.
CONTENTIONS OF THE PARTIES
4. The respondent’s representative contended that the statutory dismissal procedure had been fully complied with in this case. In relation to “ordinary fairness”, he argued that the issue to be determined by the tribunal was whether the dismissal of the claimant fell within the band of reasonable responses of a reasonable employer with particular emphasis on the factors relevant to a dismissal by reason of incapability, that is ill health. Mr Kennedy contended that, in all the circumstances, the procedure followed by the respondent was fair and the dismissal of the claimant was therefore fair.
5. The claimant’s representative did not dispute that the statutory dismissal procedure had been completed in this case. However, he contended that the dismissal of the claimant was unfair for 3 reasons. Firstly, by reason of procedural unfairness. Secondly, since the respondent had used issues of conduct in order to reinforce its decision to dismiss the claimant. Thirdly, the claimant’s counsel argued that the dismissal of the claimant fell outside the band of reasonable responses. Mr Friel invited the tribunal to award full compensation to the claimant in respect of unfair dismissal.
FACTS OF THE CASE
6. Having considered the claim form and response, and having heard the oral evidence of all the witnesses and considered the documents referred to in evidence, and the submissions made by or on behalf of both parties, the tribunal found the following relevant facts:-
7. The claimant was employed by the respondent from 27 October 2008. He was employed as a General Assistant within the Estates Services Department of the University. His duties in this role included assisting tradesmen such as joiners and electricians to carry out their duties and assisting with moving furniture and other materials which involved driving a van around the University’s sites.
8. Prior to his appointment, the claimant completed a medical questionnaire which disclosed no relevant prior medical history. The claimant was passed fit for work by Occupational Health.
9. The claimant received induction training from his line manager. This included an introduction to the University’s Absence Management Procedure. The requirement to phone in on the first day of absence and to keep in touch every few days whilst off sick was also covered.
10. The claimant was absent from work from 5 December 2008 through to 4 January 2009, a total of 13 working days. The claimant’s GP’s certificate indicated a diagnosis of “flu-like illness”. In the respondent’s sickness absence form, the reason for absence was recorded as “flu and vomiting”. However, in the respondent’s Sickness Absence Review Report, the reason for this absence was noted to be “domestic stress”. E-mail messages between managers at this time make reference to the claimant’s difficult domestic situation.
11. During this absence, the claimant did not keep in regular contact with his manager as required by the respondent’s procedure. The claimant’s manager raised this issue with him informally following his return to work and the claimant’s probationary period was extended for one month to 29 May 2009. The claimant was confirmed in post at the end of this extended probationary period.
12. The claimant was absent from work from 19 October 2009 to 1 November 2009 due to domestic stress, a total of 10 working days. Under the respondent’s Sickness Absence Procedure, the manager should review the absence levels of an employee formally when in any rolling 12 month period an employee’s absence reaches a score of 45. This score is determined by adding up the total number of days absence and multiplying the result by the number of occasions of absence. At this stage, the claimant’s score was 46, calculated as (13 + 10) x 2 = 46. The claimant’s manager Steven Bailie held a Stage 1 Review Meeting with him on 24 November 2009.
13. At this meeting, the claimant was provided with a copy of the respondent’s Sickness Absence Procedure. It was explained that the claimant’s attendance would now be monitored over the next 12 months and any further absence during this period could lead to Stage 2 of the procedure.
14. Following an investigation, the claimant received a letter dated 14 October 2010 inviting him to a disciplinary hearing regarding allegations which were being treated as potential misconduct. The claimant went off sick from 15 October 2010. On 29 October 2010, the respondent wrote to the claimant to confirm the outcome of the disciplinary hearing. The allegation of potential gross misconduct was found not proven. However, the claimant was found guilty of a lower level of misconduct and was given a warning under the respondent’s disciplinary procedure.
15. The claimant’s manager completed a referral to the respondent’s Occupational Health Department on 2 November 2010. The claimant was examined by Dr Todd on 15 November 2010. In his report, Dr Todd indicated that there had been a number of stressors in the claimant’s life for at least 5 years. He also referred to the incident at work (namely the disciplinary issue) but stated there was more to the claimant’s illness than simply that. The claimant was also reviewed by Dr Todd on 1 December 2010 when he indicated that the claimant was now starting on treatment although it would take some weeks for that to work. It was unlikely that the claimant would be fit to return to work before the New Year and he may then need to be phased back into work over a few weeks.
16. The claimant remained off sick until he returned to work on 9 January 2011, a total of 65 working days. At times during this absence, the claimant again failed to stay in communication with his manager.
17. Following the claimant’s return to work, he was required to attend a meeting on 13 January 2011. This was a Stage 2 meeting under the respondent’s Sickness Absence Procedure. The claimant was offered the opportunity to be accompanied at this meeting, but the claimant declined. It was explained to the claimant that whilst he was at work, there were no issues with his work. The problem was his level of absence. The issue of poor communication during his recent sickness absence was raised. The claimant explained that he could not “handle himself” whilst he had been off. He also said that he hoped to avoid any further absence but could not predict the future. Mrs Dalcz the respondent’s personnel officer indicated to the claimant that continued absence and failure to communicate would lead to the final review stages under the respondent’s Sickness Absence Procedure with the potential for dismissal.
18. Mrs Dalcz sent a letter to the claimant dated 18 January 2011 to confirm the outcome of the Stage 2 Absence meeting. This letter confirmed that unless the claimant’s attendance record showed “an immediate and sustained improvement, then a referral would have to be made to the Final Stage of the procedure (which is a potential dismissal stage)”.
19. The claimant had a further absence from work from 11 to 15 April 2011 due to a stomach upset. The claimant’s manager had sent him home on the first day of this absence and no further action was taken in respect of this period of absence.
20. On Friday 4 November 2011, the claimant was involved in accident at work. He was reversing the respondent’s van when he ran over a colleague. The claimant was absent from work from Monday, 7 November 2011 when he sent a text message to his manager stating that he could not sleep after the accident.
21. The claimant’s manager completed a referral to Occupational Health on 10 November 2011. The claimant attended an appointment with Dr Todd, Occupational Health Physician, on 6 December 2011. Dr Todd confirmed that the claimant had been extremely distressed by the accident, but he was now receiving treatment from his GP and had also been referred for counselling. The claimant was apprehensive about meeting the employee injured in the accident and Dr Todd recommended a supported meeting between the claimant and the other employee to alleviate the claimant’s anxieties. Dr Todd confirmed that the claimant was aware that he would need to attend another formal meeting regarding his absence and he would be fit to do so on his return to work.
22. On 7 December 2011, a letter was sent to the claimant requiring him to attend a meeting regarding his absence on 14 December 2011. The letter referred to the claimant’s current period of absence which “was approaching final Review stages”. The claimant was offered the right to be accompanied at this meeting by a trade union representative or work colleague.
23. The claimant attended this meeting unaccompanied. The claimant was referred to a flowchart relating to the respondent’s Sickness Absence Procedure and his line manager explained that since his attendance had not shown any improvement since the Stage 2 meeting on 13 January 2011, he was to be referred to a Final Review panel. It was confirmed that the Final Review Panel would be held in January 2012 and the panel would be invited to consider possible dismissal.
24. The claimant remained off work until 19 December 2011, a total of 30 working days.
25. The claimant was seen again by Dr Todd on 21 December 2011. In his report to management, Dr Todd noted that the claimant had met with the employee who had been injured in the accident and following that, the claimant had now returned to work. During the consultation, it became clear that the claimant had run out of one of his medications and Dr Todd had arranged for him to see his GP that afternoon. He also noted that the claimant had been referred for further assessment and treatment which had not yet started. Dr Todd had sought and obtained the claimant’s consent to obtain a full report from his GP.
26. On 9 January 2012, Mrs Dalcz spoke to Dr Todd who confirmed that he did not believe that the claimant’s medical condition could reasonably be described as a disability. Dr Todd had previously confirmed to Mrs Dalcz that the claimant’s history of depressive illness had pre-dated his appointment.
27. On 10 January 2012, a letter was sent to the claimant confirming that a Final Review Panel meeting was to be held on 18 January 2012. A copy of the Sickness Absence Report prepared by the claimant’s manager Mr Bailie and Mrs Dalcz was enclosed together with a further copy of the respondent’s Sickness Absence Procedure. The claimant was advised that he had the right to be accompanied to this meeting by a trade union representative or work colleague. The claimant was also advised that one of the possible outcomes of the meeting was that he could be dismissed.
28. Dr Todd examined the claimant again on 11 January 2012 and he had also received a report from the claimant’s GP. Dr Todd sent an up-dated report to Mrs Dalcz on 17 January 2012 in which he noted that the claimant had been off all treatment between January 2011 and mid-November 2011 when he recommenced appropriate treatment. Dr Todd also noted that such medication generally took several weeks to be fully effective and the claimant had not yet commenced other therapeutic treatment.
29. The Final Review meeting took place as planned on 18 January 2012. The panel consisted of Mr Gary Jebb, Director of Estates, Mr Peter Erwin, Head of Estates Services and Ms Sonya Dougherty, Personnel Officer. The management case was presented by Mr Bailie and Mrs Dalcz and the claimant attended the meeting unaccompanied. At the beginning of the meeting, Mr Jebb introduced the panel and the presenting officers. He also confirmed that the claimant had received a copy of the Sickness Absence Review report (which formed the basis of the management case) and the respondent’s Sickness Absence Procedure.
30. The management case was presented by Mr Bailie and Mrs Dalcz based on the Sickness Absence Review report. This included a summary of the claimant’s sickness absence record and emphasised that the overall rate of absence during the claimant’s employment was 18.18%. The claimant’s failure to stay in contact with his manager during his absences was also referred to. Mr Bailie argued that the claimant’s absence placed considerable strain on the service, in particular, on the only other General Assistant, which had led to the contracting out of work to an external firm.
31. The Sickness Absence Review report which was outlined to the panel also included an outline of the claimant’s progress through the various stages of the respondent’s Sickness Absence Procedure. It also included the various reports received from Occupational Health. Mr Bailie and Mrs Dalcz argued that the claimant’s previous absence pattern was a good indicator for future attendance levels, particularly since the claimant had thus far failed to give any assurances regarding his future attendance. It was therefore argued by management that no reasonable alternative to dismissal could be identified. The recommendation was that the claimant should be dismissed by reason of his inability to provided sustained attendance at work, his apparent lack of disclosure of prior instances of periods of stress/depressive symptoms at time of appointment and his repeated lack of compliance with sickness absence notification procedures.
32. The claimant accepted that he was given a full opportunity to present his case at the Final Review Meeting. The claimant acknowledged the difficulties caused by the absence of employees. The claimant referred to difficulties in his home life and particular incidents at work which he had found very difficult to cope with. He had previously found it very difficult to acknowledge that he suffered from depression, but he now intended to take his medication regularly. The claimant confirmed that he intended to take steps to improve, namely to acknowledge that he suffered from depression, continue to take his medication and communicate with people when depressed. The claimant also responded to a number of questions from the panel.
33. After both parties had presented their cases, the panel held their deliberations in private. The panel concluded that the claimant should be dismissed and this decision was confirmed to the claimant in a letter from Mrs M Leonard, Personnel Manager, dated 19 January 2012. This letter indicated that the panel had taken account of the claimant’s overall sickness absence level of 18.18% and the impact of his absence on the service. The claimant’s lack of communication during his absence was also referred to. The reason for dismissal was stated to be “on grounds of your inability to provide sustained attendance at work”. The claimant received 1 month’s salary in lieu of notice. The claimant was given a right of appeal.
34. The claimant appealed this decision by a letter dated 24 January 2012 in which he contended that the decision to dismiss him was entirely unreasonable and unjustifiable. The claimant noted that all his absences were as a result of stress and depression, save for one, and he referred in particular to his final absence as a result of an accident at work which had caused him great distress.
35. The claimant was invited to an appeal hearing on 22 February 2012. The claimant was reminded of his right to be accompanied at the appeal hearing. The appeal panel consisted of John Gormley, Director Information Services, John Nugent, Deputy Director of Estates and Deirdre McGuire, Personnel Officer. The management case was presented by Mr Jebb and Mr Erwin who had been part of the Final Review panel and Mrs Dalcz.
36. The claimant attended the appeal meeting unaccompanied. Mr Gormley introduced the panel and the presenting officers. The claimant was asked to present his reasons for his appeal. The claimant referred to the reasons for his sickness absence and family stressors. He said that he remained on medication and intended to keep taking this. The claimant asked for an opportunity and offered the respondent a “deal”, namely that he would remain at work for the next 2 years without absence and if he reneged on this, he would accept dismissal.
37. The management case was essentially that the claimant had already been afforded an opportunity to improve at previous stages of the respondent’s absence management procedures. It was also indicated that the Occupational Health reports did not suggest an underlying medical condition, but rather indicated depression that was reactive to particular incidents and stressors. It was stressed that the respondent was not questioning the genuineness of the reasons for the claimant’s absence.
38. The appeal panel retired to reach its decision in private. The panel decided to uphold the decision of the Final Review Panel that the claimant should be dismissed. The decision was confirmed by a letter dated 28 February 2012 from the respondent’s Director of Human Resources. This letter confirmed that the appeal panel was satisfied that the respondent had complied with all the stages of its Sickness Absence Procedure. It was also indicated that the claimant had been offered considerable support to improve his attendance, including referrals to Occupational Health. Since the claimant’s attendance record did not show sustained improvement and his overall level of absence was 18.18%, the appeal panel agreed with the decision of the Final Review Panel.
39. The claimant’s earnings at the date of his dismissal were £1,559.83 per month gross and £1,177.80 per month net.
40. Since the date of dismissal, the claimant has not found permanent work. He has not made any applications for permanent work as an employee since his preference was to return to work on a self-employed basis. He has not made application for any state benefits. However, he has signed up with an employment agency, namely Compass and has undertaken some work through that agency. He began work through Compass on 13 February 2012. The claimant’s time sheets show that he worked for 51 hours during the week ending 19 February 2012 and 25 hours during the week ending 21 February. The claimant received income via an organisation known as “the Guild” during February, March, June and July 2012 which totalled £3,061.40 net. He has undertaken further work during August 2012 and since this hearing began. He has also given quotes and estimates on his own account for various pieces of work and has undertaken small pieces of such work from time to time for which he earned modest sums. Details of the precise sums earned by the claimant from such work were not made available to the tribunal. Generally, the evidence in relation to the claimant’s post-dismissal earnings was not comprehensive.
41. The claimant was a member of the respondent’s pension scheme throughout his employment. No evidence was presented to the tribunal regarding the claimant’s entitlement under this scheme or the loss of pension entitlement following his dismissal.
STATEMENT OF LAW
42. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-
Step 1
Written statement of grounds for action and invitation to meeting – the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee
Step 2 - Meeting
This meeting must take place before action is taken. The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement the grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information
After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.
Step 3 - Appeal
If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision. The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.
43. By Article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair. A tribunal is required to consider whether the dismissal is automatically unfair under Article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07).
44. Leaving to one side the question of potentially automatically unfair dismissal as referred to above, pursuant to Article 130(1) of the Order, it is for the employer to show the reason for dismissal (or if more than one), the principal reason for the dismissal and that it is a reason falling within paragraph (2).
45. A reason falls within paragraph (2) if it “relates to the capability…….of the employee for performing work of the kind which he was employed by the employer to do”. By paragraph (3) of Article 130, ““capability” in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”.
46. Article 130(4) of the Order states as follows:-
“where the employer has fulfilled the requirements of para (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”.
47. The leading case which provides guidance as to how tribunals should approach the assessment of fairness under Article 130(4) of the Order is the judgment of the EAT (Browne-Wilkinson J presiding) in Iceland Frozen Foods v Jones [1982] IRLR 439. The test was formulated in the following terms:
''Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [article 130(4)] is as follows.
(1) the starting point should always be the words of [s 98(4)] themselves;
(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer;
(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable response which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band, it is unfair”.
48. Dismissals by reason of capability were considered in the case of Spencer v Paragon Wallpapers Ltd 1976 IRLR 373. In this case, the EAT stated that “each 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?” Phillips J in this case also added that the relevant circumstances which must be considered 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”.
49. A case involving intermittent absences from work was considered by the EAT in the case of Lynock v Cereal Packaging Ltd 1988 IRLR 510. Wood J in this case said as follows:-
''The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgment—sympathy, understanding and compassion. There is no principle that the mere fact that an employee is fit at the time of dismissal makes his dismissal unfair; one has to look at the whole history and the whole picture. Secondly, every case must depend upon its own facts, and provided that the approach is right, the factors which may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following—the nature of the illness; the likelihood of recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the impact of the absences on others who work with the employee; the adoption and the exercise carrying out of the policy; the important emphasis on a personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching. These, we emphasise, are not cases for disciplinary approaches; these are for approaches of understanding'.
50. In this case, the claimant did not seek reinstatement or re-engagement. Rather, he sought compensation only for unfair dismissal. By Article 152 of the Order, where a tribunal makes an award of compensation for unfair dismissal, the award shall consist of a basic award and a compensatory award.
51. By Article 157 of the Order, the amount of the 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 in so far as that loss is attributable to the action taken by the employer. In ascertaining the claimant’s loss, the tribunal is required to apply the common law rules in relation to the claimant’s duty to mitigate his or her loss.
CONCLUSIONS
AUTOMATICALLY UNFAIR DISMISSAL
52. In this case, it was accepted by the respondent that the claimant had been dismissed. The tribunal was therefore required to consider whether:-
(a) the statutory dismissal procedure was applicable in this case;
(b) if so, whether the statutory dismissal procedure had been completed; and
(c) if not, whether any failure to complete the statutory procedure was due to fault on the part of the respondent.
53. The tribunal reviewed generally the requirements of the statutory dismissal procedure as outlined at paragraph 39 above. The tribunal noted that the claimant had received a letter dated 10 January 2012 inviting him to a Final Review meeting on 18 January. This letter advised the claimant that one of the possible outcomes of the meeting was that he could be dismissed. The letter also advised the claimant of his right to be accompanied at this meeting. The statutory procedure requires that the employer must write a letter to the claimant setting out the grounds on which the employer is contemplating the dismissal of the claimant. In this case, the claimant was provided with a copy of the Sickness Absence Report which in effect was an outline of the management case recommending dismissal. The tribunal is therefore satisfied that the claimant received the detailed grounds on which the respondent was contemplating dismissal. Accordingly, the tribunal had no hesitation in concluding that the requirements of Step 1 of the statutory dismissal procedure were fully complied with in this case.
54. The tribunal then considered the requirements of Step 2 of the statutory dismissal procedure. The claimant attended a Final Review Meeting on 18 January 2012. At this meeting, the claimant was given a full opportunity to respond to the management case and put forward his case. A decision in relation to the termination of the claimant’s employment was not taken until after this meeting. The tribunal therefore concluded that the requirements of Step 2 of the statutory dismissal procedure were satisfied in this case.
55. Finally, the claimant was given an opportunity to appeal and an appeal meeting was held on 22 February 2012 following which the decision to dismiss the claimant was upheld.
56. The tribunal is satisfied that the statutory dismissal procedure was fully completed in this case. Indeed, this was not disputed by the claimant. Accordingly, the dismissal of the claimant was not automatically unfair by reason of non-completion of the statutory dismissal procedure.
“ORDINARY” UNFAIR DISMISSAL
57. The tribunal had to consider firstly whether the respondent had shown the reason for dismissal in this case. The respondent’s contention was that the reason for the claimant’s dismissal was capability, namely the claimant’s ill health which led to an overall level of absence of 18% during his employment with the respondent. The claimant contended that the respondent had taken account of some matters of conduct in order to “bolster” the reasons for dismissal.
58. In considering this question, the tribunal bore in mind that the obligation on the respondent is, if there is more than one reason for a dismissal, to show the principal reason - see paragraph 41 above. The tribunal took account of all the evidence, including the letter dated 19 January 2012 confirming the dismissal decision, the letter dated 28 February 2012 confirming the outcome of the appeal and the oral evidence of the decision-makers, namely Mr Jebb, Ms Dougherty and Mr Gormley. On the basis of all the evidence, the tribunal was satisfied that the principal reason for the dismissal was the capability of the claimant, that is his health and level of absence due to sickness. Some matters which were more properly described as matters of conduct formed a subsidiary part of the reasons for dismissal. The tribunal concluded that the respondent in this case had discharged the burden on it to show the principal reason for the dismissal.
59. The tribunal then proceeded to consider whether the dismissal of the claimant was fair in all the circumstances in accordance with the principles described at paragraphs 44 to 46 above. This was not a case where the dismissal of the claimant was due to a long period of absence and where the claimant remained absent at the date of dismissal. Rather in this case, the claimant was actually in work at the date of his dismissal. Therefore, the tribunal considered that the test referred to in the case of Spencer v Paragon (see paragraph 48 above) “could the employer be expected to wait any longer?” was not directly applicable.
60. As the tribunal understands it, the respondent’s position in this case was that it considered the history of the claimant’s past absence from work was the best indicator of future absence and this level of absence, 18% overall, could not continue to be tolerated.
61. The tribunal considered in detail the procedure followed by the respondent. The respondent operated a Sickness Absence Procedure with the claimant which was drawn to the claimant’s attention on many occasions. This included at his induction with his line manager and at the meetings at Stages 1 and 2 of the procedure followed in this case and at the Final Review Stage. The respondent’s Procedure draws a distinction between short and long-term absences.
62. Short-term absences are dealt with at Section 4 of the Procedure. The process to be followed is essentially based on “trigger-points” so that where these points are reached, an employee will be moved through the stages of the procedure from Stage 1 through Stage 2 to the Final Review Stage.
63. Long-term absences are dealt with at Section 5 of the Procedure. These are absences of at least 4 weeks (20 working days) or which could result in an employee being unable to return to work. The process to be followed is to be determined by the line manager following a medical examination. The Procedure states at paragraph 5.1 that “this may include progress in stages ….as previously outlined under short-term absences”.
64. It was the claimant’s case that the respondent failed to differentiate between absence types, leading to the same procedure being applied and continued irrespective of whether the absence was short-term or long-term. The respondent’s position was that the respondent’s procedure permitted the respondent to adopt a process involving progressive stages in certain cases of long-term absence.
65. The tribunal was mindful that its role was to consider the reasonableness of the procedure adopted by the respondent and not to test the respondent’s actions against what the tribunal would itself have done. The tribunal took account of a number of factors. Firstly, the fact that the respondent’s procedure left open the option to use a staged procedure in appropriate cases of long-term absences. Secondly, the pattern of the claimant’s absences, some of which were classified as short-term and some long-term under the respondent’s Sickness Absence Procedure. These absences were generally both intermittent and recurring. Thirdly, the staged process allowed the claimant an opportunity to demonstrate improved attendance before the process was moved onto the next stage. Finally, as required by Section 5 of the Procedure, the respondent had sought a medical opinion from Occupational Health and this was taken into account during the staged process. In all the circumstances, the tribunal concluded that it was reasonable for the respondent to decide to deal with the claimant’s capability and resulting level of absence through the staged procedure, informed by medical opinion, which it adopted in this case.
66. The claimant argued that there was a breach of procedural fairness when the respondent used matters of conduct in order to bolster the decision to dismiss the claimant. It is the case that the letter dated 19 January 2012 confirming the claimant’s dismissal referred to the claimant’s lack of communication during his absence and failure to comply with sickness notification and medical certification procedure. However, it was also mentioned that these caused difficulties for the claimant’s line managers to plan and arrange cover for his absence. As set out at paragraph 54 above, the tribunal was nevertheless satisfied that the principal reason for the dismissal of the claimant was capability. It also appeared to the tribunal that the fact that Article 130(1) permits an employer to show the principal reason for a dismissal connotes that it is permissible for an employer to take account of subsidiary reasons for a dismissal in addition to the principal reason.
67. The tribunal also accepted the contention of the respondent’s counsel that these matters of conduct were raised in the context that they increased the impact of the claimant’s absences on the respondent’s business. The tribunal was also mindful that these matters had been raised with the claimant on a number of occasions before being discussed once again at the Final Review and appeal meetings. The claimant had therefore had ample opportunity to put forward his case in relation to these issues. In the circumstances, and to the extent that these matters did form a subsidiary part of the reasons for the dismissal, the tribunal concluded that it was reasonable for the respondent to take account of these matters alongside capability issues.
68. The claimant’s primary contention in this case was that the dismissal of the claimant was unfair since it was outside the range of reasonable responses of a reasonable employer. The main focus of the tribunal’s deliberations was on this issue. The tribunal took careful note of the guidance set out in the case law referred to at paragraphs 44 to 46 above. In particular, the tribunal was mindful that it must not substitute its own view for that of the employer. Rather, the tribunal must consider whether the employer’s actions were reasonable in all the circumstances.
69. In their evidence to the tribunal, each of the respondent’s witnesses emphasised strongly the fact that the claimant’s overall level of absence during his employment was 18% of available working days. The tribunal did not consider that this statistic of itself would necessarily justify dismissal. This matter would have to be considered and weighed alongside all the other relevant factors, such as those outlined in the case of Lynock at paragraph 49 above.
70. The nature of the illness in this case, according to the Occupational Health opinion obtained by the respondent, was a reactive depressive condition which was triggered as a response to stressful events. This was certainly the background to and trigger for the majority of the claimant’s longer absences. The tribunal considers that it was reasonable for the respondent’s decision-makers to take the view in this case, based on the history, that it was likely that such absences would recur in the future. The claimant sought to assure the respondent at the final stages of the procedure that he had made significant changes in his life to ensure that such absences would not continue. The members of the final review and appeal panels took the view in effect that this was “too little too late” and the claimant had ample opportunity to take such steps at an earlier stage. The tribunal had considerable sympathy with the claimant’s position and his plea at the appeal meeting to be given another opportunity. However, ultimately, the tribunal concluded that the respondent’s view as to the likelihood of recurrence of similar illnesses and absences was based on the medical opinion available to the respondent together with evidence of past history. It was therefore reasonable for the respondent to reach this view.
71. The tribunal took into account the nature of the claimant’s job. The claimant was employed as a General Assistant. As the job title suggests, the main aspect of the role was to assist other technical staff, such as tradesmen. There were only 2 General Assistants by the time of the claimant’s dismissal. The tribunal did not hear a great deal of detailed or direct evidence regarding the impact of the claimant’s absence on the respondent’s Estates Department or his colleagues. In relation to the respondent’s resources, clearly the respondent was a very large organisation with a large workforce overall and a considerable number of employees within its Estates Department. The tribunal was not entirely convinced that when the claimant was absent, this had a particularly acute impact on the department. Generally, the tribunal was left with the impression that uncertainty over when and for how long the claimant was going to be absent, and thus the difficulty in planning work, was the biggest factor for the respondent.
72. One of the factors which may be relevant in capability cases is the duration of the claimant’s illness. In this case, as already mentioned above, the dismissal of the claimant was not as a result of a single lengthy period of absence, but rather following a number of intermittent and fairly lengthy absences. The claimant’s last absence due to the traffic accident at work was for a period of approximately 6 weeks (30 working days). The claimant was off for longer than the employee injured in the accident. In this case, the more relevant factor for the respondent was the pattern of recurrent and intermittent absences. The respondent took the view that the overall level of absence caused by these absences (some 18%) was intolerable. Generally, the tribunal considered that the respondent’s position on this issue was perhaps a little on the harsh side. However, the tribunal did not consider it to be so harsh as to be unreasonable.
73. The cause of the majority of the claimant’s various illnesses and absences was a reaction to stress. That being the case and since it would be impossible to completely avoid difficult or stressful situations inside or outside of work, the respondent took the view that a recurrence of such illnesses and thus absences was likely.
74. The respondent’s witnesses gave evidence that alternative employment for the claimant was considered but quickly ruled out. The tribunal felt that the respondent’s consideration of this was somewhat cursory, but this was understandable as it was unlikely that any alternative post would be of assistance in averting a recurrence of the claimant’s reactive illness and thus absence.
75. Finally, the tribunal considered the fairness of the dismissal in this case in the round and in the context of the procedure followed by the respondent. The dismissal came at the end of a procedure which had included formal monitoring of the claimant’s attendance and, in effect, a clear warning of the possible outcome if there was no improvement. It had been made clear to the claimant at the Stage 2 meeting that he was then close to the “point of no return”. The respondent had also provided the claimant with support from its Occupational Health doctor who the claimant accepted had been helpful and sympathetic. Medical opinion was also obtained and taken into account. At all relevant stages, the claimant was given a full opportunity to put forward his case and he was also afforded the opportunity to be accompanied.
76. Generally, the tribunal had a degree of sympathy with the position the claimant found himself in and it did consider that the respondent’s processing of the case through its Absence Procedure was somewhat mechanistic with limited scope for the exercise of any discretion. However, on balance and taking account of all the relevant circumstances of the case, the tribunal concluded that dismissal fell just within the range of reasonable responses of a reasonable employer to the situation relating to the claimant’s capability.
77. Accordingly, the tribunal found the dismissal of the claimant to be fair and this claim is therefore dismissed in its entirety.
Chairman:
Dates and place of hearing: 15 August, 31 August, 10 September 2012, Belfast.
Date decision recorded in register and issued to parties: