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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ledgerwood v L E Pritchett and Company Ltd [2015] NIIT 02599_14IT (17 July 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/02599_14IT.html
Cite as: [2015] NIIT 02599_14IT, [2015] NIIT 2599_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2599/14
CLAIMANT: Vincent Ledgerwood
RESPONDENT: L E Pritchett and Company Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed, and the claim is therefore dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mr J Pollock
Mr P Killen
Appearances:
The claimant was represented by Mr O Friel, Barrister-at-Law, instructed by Donnelly and Kinder Solicitors.
The respondent was represented by Mr P Bloch of the Engineering Employers Federation.
ISSUES
1. This was a claim for unfair dismissal by the claimant against the respondent company. The claimant had been dismissed for a number of absences from work under the respondent's Absence Policy. The claimant asserted that the Absence Policy was unfair in that he had received a final written warning, based partly on expired warnings for absenteeism within six years prior to his recent absences. The respondent argued that the Absence Policy had been previously negotiated between the respondent company and union representatives, that the policy was a staged process whereby an employee who had two absence-related warnings in the preceding six years and then subsequently again reached a "trigger point" for possible disciplinary action under the Absence Policy, could receive a final written warning. In the claimant's case, a final written warning was in force when he had a further period of absence which led to his dismissal. The respondent denied the claimant's allegations and contended that dismissal was a fair and reasonable response in all the circumstances.
THE FACTS
2. We heard evidence from the claimant, from his union representative Maurice Cunningham and on behalf of the respondent from Stephen Evans, Manufacturing Operations Manager of the respondent, Tim Acheson, General Manager of Food Service Operations of the respondent and Mrs Hazel Bunting, Human Resources Manager UK of the respondent. A number of documents were also opened to us in the course of the hearing. On the basis of the evidence received, we make the following findings of relevant facts.
3. The claimant was employed by the respondent from January 1998 until August 2014 when he was dismissed for persistent absenteeism under the respondent's disciplinary procedure. In April 2004 he was promoted to section leader and he remained in that position until his dismissal. His unchallenged evidence to the tribunal was that he had worked consistently for the respondent, that he had attended meetings outside of his normal working hours in his role of section leader and that his timekeeping was generally good. The main issue which arose between the claimant and the respondent was in relation to his absenteeism.
4. Mrs Bunting gave evidence in relation to the introduction of the company's Absence Policy. The claimant's evidence was that in or around 2000 the respondent's sick pay scheme - which was generous in that it allowed for up to 20 weeks' full pay including contractual overtime and shift allowances - was extended to "non-staff" including production staff. Mrs Bunting's evidence was that by 2009 the cost and level of absence within the respondent's business had reached an unacceptable level. As a result the company's sick pay scheme was in jeopardy, because it was considered to be unsustainable by management. In 2003 an Absence Policy had been introduced which set out the level of absences which would "trigger" possible disciplinary action. If an employee had had two absence-related warnings within a period of three years and subsequently reached a trigger point again, the respondent was entitled to take into account the previous absence related warnings (even though they had already expired) and the Absence Policy stated that a final written warning would then normally result. If there were further absences within the life of the final written warning, an employee would then be vulnerable to dismissal.
5. In 2009, there were negotiations between the respondent and four on-site union representatives in relation to the cost and level of absence. There was clearly concern that the sick pay scheme might be at risk. The claimant's evidence, which was not disputed by the respondent, was that his particular section did not have a union representative and they asked a retired union representative to negotiate on their behalf. That representative withdrew from the negotiations after a request for a full time union representative to be involved was not considered by management. Management however continued negotiations with the onsite union representatives, none of whom was called to give evidence at the hearing. Mrs Bunting's undisputed evidence was that the union representatives were keen to find a solution to ensure retention of the generous company sick pay scheme. As she said, "Their belief was that the management should be dealing with the persistent offenders and retain the CPS (Company Sick Pay Scheme) for those who do not abuse." Mr Acheson's evidence was the extension of the "retrospective" period from three years to six years was actually suggested by the union representatives and there was no evidence to dispute this, although Mr Cunningham was of the view that full-time officials should have been involved in the negotiations and that their lack of involvement made the Absence Policy unfair. In March 2009 the Absence Policy was reviewed and changed. The covering letter from Mrs Bunting issued to all employees on 9 March 2009 refers to the consultation meetings held with the unions to review and revise the absence procedure. It sets out that the objective is to significantly reduce the level and cost of absence at the Newtownards site and ensure any reduction is sustainable. The letter then states,
"This policy will be in operation from Sunday 15 March 2009. Please make sure you take time to read this policy, familiarise yourself with the changes and if you have any queries discuss either with your line manager, union representative or myself."
6. The claimant did not raise any formal query or grievance in relation to this change of policy in 2009 or subsequently. In his witness statement, he expressed concern that the changes had been introduced and that the significance of these changes had not really been appreciated at the time. In 2012 the same policy was inserted into the Employee Handbook. The relevant parts of the policy read as follows:-
" Back to work interviews
Non-Attendance and Hardships are clarified as absence. On return from any absence and at the earliest opportunity employees shall be interviewed by their first line supervisor/manager as to the nature/reason for absence. At any stage the HR Manager may attend and assist in this interview. The supervisor/manager should keep a record of this discussion. The employee shall return a "return to work interview form" with their line supervisor/manager which when complete should be forwarded to HR/Payroll Department.
Absence Review Procedure
When an employee returns from absence their absence record over the previous 12 months will be reviewed (12 months is calculated from the first day of absence on the latest occasion, therefore more than 12 months will be reviewed in some cases) by their line manager/supervisor. The following will be taken into consideration
· If the absence level has reached any of the triggers below.
· The trigger levels are as follows:-
Ø Three occasions totalling 15 days or 12 shifts absence
Ø Four occasions totalling ten days or eight shifts absence
Ø Five occasions totalling eight days or seven shifts absence
Ø Six occasions totalling six days or six shifts absence over a twelve month rolling period
· Where an absence record of an employee identifies a persistent unsatisfactory or unacceptable level of absence, trend or pattern in preceding years which may or may not have constituted a previous disciplinary warning (e.g. similar time or length of time off each year, absence immediately following a lapsed warning).
When the attendance record reaches a defined trigger level the employee shall be informed by their line manager/supervisor that a meeting will take place. The purpose of the meeting is to establish the reasons for the absence level and whether the company can help or support the individuals to reduce absence.
As a result of this meeting the company may implement its formal disciplinary procedure. The level of disciplinary action will depend on employees' previous disciplinary record regarding absence. Provided the employee has no live absence related warnings in the last two years the initial disciplinary action is likely to be a verbal warning. If the employee has had a live absence related warning in the last two years then a written warning is likely to be issued. However if the sanction was a written warning then the disciplinary action is likely to be a final written warning.
· If the employee has had 2 absenteeism related warnings in the preceding six years then a final written warning will normally be issued.
The Company will not take any formal disciplinary under this procedure without
· Having, where necessary, carried out an investigation. The Company will inform the employee whether any meeting he or she is asked to attend if investigatory or disciplinary.
· Giving or sending the employee a letter setting out the complaint made against him or her and possible outcomes of the disciplinary hearing. The letter will also inform the employee that he or she must attend a disciplinary hearing to discuss the matter and confirm the time, date and location of that meeting.
· Providing the employee with relevant evidence prior to the meeting;
· Giving the employee together with any permitted companion a reasonable opportunity to consider his or her response to that information, i.e explaining the Company's case at the meeting and giving the employee an opportunity to put his or her case in respect of the allegations made.
· Giving the employee the right to appeal against any formal action taken against them under the procedure ..."
A verbal warning under this procedure would remain in force for six months; a written warning would remain in force for 12 months and the employee would be excluded from the company sick pay scheme for a minimum of two years which would be reviewed after expiry of the written warning. Where a final written warning was issued, this would remain in force for 12 months and the employee would then be excluded from the company's sick pay scheme for the remainder of their employment. The paragraph on final written warnings also indicates that "if a further occasion of absence occurs whilst the final written warning is in force, dismissal may occur."
The paragraph in relation to dismissal provides as follows:-
" Dismissal.
The company may dismiss an employee where
· The required improvement is not achieved within any timescale stated in a final warning; or
· Further misconduct or poor performance takes place within the duration of the final warning; or
· It is reasonably believed that he or she has committed an act of gross misconduct. Unless dismissal is for gross misconduct the employee will be dismissed with notice ...
In exceptional circumstances the company may seek an employee's agreement to demotion or suspension without pay or other penalty as an alternative to dismissal. Where it is deemed appropriate, a final warning may also be issued or continued in force."
The policy sets out the position in relation to long term sickness and stresses the importance of producing medical or doctor's certificates to cover periods of absence which may otherwise result in disciplinary action.
7. One of the issues raised by the claimant in relation to the Absence Policy was that it allowed management to take into account expired warnings retrospectively. In particular he was concerned about the fact that the "six year rule" was introduced in 2009, there was no lead-in period and therefore longer serving employees such as the claimant could have expired warnings taken into account retrospectively when they reached a trigger point. The copy of the disciplinary procedure which was produced to us clearly states that there is a separate procedure for absence management. Although it states that warnings will be kept confidential and "through time erased from the employee's personnel file", Mrs Bunting made it clear that this did not apply to expired absence related warnings which could be taken into account under the "six year rule". It is also relevant to note that under the disciplinary procedure, warnings cease to have effect subject to satisfactory conduct or performance after six months in the case of a verbal warning and 12 months in the case of written warnings and final written warnings. The disciplinary procedure states, "This will normally be after 12 months but a longer period may be stated in exceptional cases."
8. For the purposes of this claim it is unnecessary for us to set out each and every absence which the claimant had. The absences for which the relevant warnings were issued commenced in December 2007 and reached a trigger point in September 2008, when he was given a six month verbal warning. Over the next year and a half he had further absences totalling 41 shifts, of which 34 shift absences were due to a hernia between February and April 2010. He was issued with a 12 month final written warning for absence in April 2010. He subsequently had surgery for his hernia and the period of absence related to that surgery and subsequent recovery period was not taken into account under the Absence Policy. Between August 2011 and August 2013 there were eight separate absences totalling 19 shifts, which took the claimant to a trigger point for disciplinary action. As a result, the claimant was issued with a 12 month final written warning for having had two previous absence related warnings in 2008 and 2010, (both by then expired) within the previous six years.
9. The respondent's witnesses did not dispute that the claimant's absences were for genuine illnesses, where so stated. There was one absence in June 2013 which the claimant believed had been treated unreasonably by the employer, in that he had sought to take a day's retrospective holiday in respect of an absence. The situation was that the claimant became aware that the mother of a close friend had died. He attended the funeral on a day when he was not rostered to work and was due to start work at 6.00 am the next morning. Because he stayed late at the funeral, he got to bed at 4.00 am in the morning and slept in, as a result of which he missed his shift. He then sought to take this absence as a day's leave the next day and was told that he would have to speak to his line manager, who was on holiday and due back shortly. There was a delay in the claimant having a return to work interview with his line manager. By that stage the line manager indicated that the absence had already been processed and he could not change it to a holiday, according to the claimant's evidence. The line manager did not attend to give evidence at the hearing.
10. This absence was raised by the claimant on appeal against the final written warning (see below) and at his appeal from dismissal in the autumn of 2014. Mr Acheson who dealt with the appeal from dismissal spoke to the claimant's line manager and others in relation to this absence. The notes of these conversations (which were put to the claimant in cross-examination) indicate that none of the managers recalled him asking for the day to be treated retrospectively as holiday. None of the managers concerned gave evidence to the tribunal. It was agreed by all the respondent's witnesses that there was a culture of asking for absences to be treated retrospectively as holiday and that those would commonly be granted. The claimant agreed however that there had been negotiations (in which he was involved) to limit to three the number of people who could be off at any given time to maintain business efficiency. It was his case in relation to this absence that the relevant maximum number of people were not on leave and that he could have been allowed a day's holiday. There was no direct evidence on this issue from any of the respondent's witnesses and the paperwork we were referred to was unclear.
Mr Acheson's finding in relation to the appeal was that the supervisory and management team had acted in accordance with the absence policy and that they had "applied discretion appropriately and acted reasonably in managing his absence and specifically on the occasion of 19 June 2013." Given the lack of clarity about the evidence on this point, we are unable to make a finding that treating this absence as an absence rather than a holiday was unreasonable on the part of the respondent.
11. Following the "bereavement" absence on 19 June 2013, the claimant suffered an inflammation to his ankle which resulted in him being off for two days on 12 and 13 August 2013. Due to this, he reached a trigger point for a third time and was issued with a 12 month final written warning in relation to absence on 15 August 2013.
12. The claimant appealed against his final written warning and that appeal was dealt with by Stephen Evans on 17 October 2013. It was put to Mr Evans in cross-examination that when dealing with the claimant's appeal against the Final Written Warning in October 2013 it appeared from the outcome letter that the respondent had not shown discretion in dealing with the claimant and indeed that Mr Evans had referred to the claimant having had four warnings in seven years. Mr Evans was clear that the policy did not refer to four warnings in seven years but that he was dealing with a request by the claimant that he should take into account other aspects of his record, namely his timekeeping, lack of sickness appointments and work out-of-hours for the Company. In doing so Mr Evans said that he had looked at the entirety of the claimant's record and noted that he had had four warnings for absence in the previous seven years. He said although there were a lot of good things in the claimant's record, absence was a particular problem overall. Mr Evans upheld the decision to issue the final written warning on the basis that the Absence Policy had been applied appropriately specifically in relation to the "bereavement" absence and he found that holiday arrangements had been managed appropriately by the departmental supervisor and in accordance with company arrangements. The claimant had also alleged that there was no discretion given to his circumstances and Mr Evans found that there had been discretion applied, specifically in relation to the claimant's absence due to surgery for a hernia in April 2010 and when a previous warning was reduced to a written warning from a final written warning in February 2007.
13. The claimant then maintained a clear attendance record for ten months until he was absent from work on 15 and 17 June 2014 due to inflammation of the lower back. His return to work interview was completed on 20 June 2014 and was referred to Mr Evans. Because the claimant had been absent while the final written warning was in place, the claimant was invited to a disciplinary meeting which, due to holiday commitments, took place on 29 July 2014. Subsequent to this the claimant was dismissed from his employment on 18 August 2014 by Mr Evans, with notice. The dismissal letter stated:-
"Dear Vincent
This letter is confirmation that the decision taken following the disciplinary hearing meeting held on Tuesday 29 July 2014 is that you will be dismissed with notice in accordance with the Company Disciplinary and Procedure. Your last day of service is Monday 18 August 2014.
As verbally explained to you today, the reason for your dismissal is that you have had two shifts of absence (15 and 17 June 2014), whilst the Final Written Warning is in place (Final Written Warning issued on 15 August 2013).
I have taken into account the comments of your full-time union official in relation to the Company's Absence Policy. In response to this, the Absence Policy was agreed and implemented in 2009 following consultation between the Company and the local site union representatives with the aim of reducing the level of absence and high costs associated with it. The Absence Policy clearly sets the trigger levels for absence after which the Company will implement its formal Disciplinary Procedure and further states that the level of disciplinary action will depend on employee's previous disciplinary record regarding absence. In addition, the Company Disciplinary Policy clearly states that there are other policies which are relevant to disciplinary matters, and that these are incorporated into the Disciplinary Policy ...".
14. The letter then stated that the claimant would receive 12 weeks' pay in lieu of notice and payment for any holidays due to him and set out his right to appeal. There was no mention in the letter of any other matters that had been taken into account in relation to the decision to dismiss the claimant. The claimant had raised matters such as his length of service, his timekeeping and out-of-hours work for the Company at the disciplinary meeting.
15. In relation to the dismissal, Mr Evans indicated that he had followed the Absence Policy although he disagreed with Mr Friel's suggestion that the policy was applied "mechanistically". In Mr Evans' view matters needed to be dealt with professionally and consistently. He agreed that the claimant had had 10 months' absence free from August 2013 until June 2014 but noted that under the Absence Policy, one more absence then prompted a disciplinary in June/July 2014. Mr Evans gave no direct evidence, and he was not cross-examined, on the issue of whether he had considered any alternative penalty to dismissal. His statement indicated that the holiday request of June 2013 which the claimant raised at his disciplinary hearing had already been dealt with during the course of the appeal against the Final Written Warning in October 2013. He also referred to the Absence Policy which referred to the trigger levels for absence and that the level of the disciplinary warning would depend on the employee's previous disciplinary record regarding absence.
16. The claimant appealed the decision to dismiss him to Mr Tim Acheson and that appeal was dealt with on 3 October 2014 due to holiday commitments of both the claimant and Mr Acheson. The basis of the claimant's appeal was that he contested the validity of the Absence Policy and he also contested the validity of the previous disciplinary warning appeal decision in October 2013. Mr Acheson convened a second meeting on 21 October 2014 to allow him time to confirm the situation in relation to the previous disciplinary warning appeal and in particular the circumstances of the "bereavement" absence on 19 June 2013. It was confirmed that this absence did not fall within the company's Bereavement Leave Policy. The claimant's main contentions in relation to this day were that he had not been allowed holiday retrospectively, whereas other people had been accommodated by being given retrospective leave and that he disputed that there were already three people on leave on his shift that day. Mr Acheson's finding was that the policy had been appropriately followed by the claimant's supervisor and management team and the decision to dismiss was upheld. It was put to Mr Acheson in cross-examination that the claimant had worked for the respondent for 16 years and that there was no issue regarding the genuineness of his absences. Mr Acheson agreed with this and said this had been taken into account regarding the appeal. When it was put to him that a lesser sanction might have been applied, he indicated that he had given it consideration but he considered that discretion had been shown to the claimant on a number of occasions. It was also put to him in cross-examination that according to the Absence Policy, he could have considered the possibility of demotion or suspension and he was asked if he had taken that into consideration. He indicated that he had noted this, but in this case he considered dismissal as the appropriate sanction.
17. Since the claimant's dismissal he had made various efforts to find work which were set out in his witness statement. The respondent took no issue with the claimant's evidence in relation to mitigation of his loss. It was agreed also that the claimant had been earning £592.14 gross and £447.40 net per week at the date of his dismissal and that he had 16 complete years' service with the respondent.
THE RELEVANT LAW
18. The relevant law in relation to unfair dismissal is to be found at Article 130 of the Employment Rights (Northern Ireland) Order 1996 and reads as follows:-
"Article 130 (1) In determining for the purposes of this Part 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.
(2) A reason falls within this paragraph if it -
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) that the employee was redundant; or
(d) is that the employee could not continue to work in the position in which he held without contravention (either on his part or that of his employer) of a duty or on restriction imposed by or under a statutory provision ..."
In this case, the respondent conceded that the employee had been dismissed and it is therefore for the employer to show that the reason for the dismissal was a fair one, i.e. that it related to the conduct of the employee. It is then for the tribunal to consider whether the employer acted reasonably in treating the conduct alleged as sufficient reason for dismissal.
19. The relevant case law was summarised in the judgment of the Northern Ireland Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42 and quoted with approval by the same Court in Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. Their Lordships were referred to established case law in the cases of British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR which was further refined in the judgments of Lord Justice Mummery in Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2000] ICR 1283. The guidance set out in Iceland Frozen Foods is as follows:-
"(1) The starting point should always be the words of [Article 130] themselves;
(2) In applying the section [Article] 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 was 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 employees' 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 responses 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."
20. In British Home Stores v Burchell the position was summarised by Mr Justice Arnold as follows:-
"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief. And thirdly, we think, that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances of the case. ... It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being "sure", as it is now more normally in the criminal context, or, to use the more old fashioned term, such as to put the matter "beyond reasonable doubt". The test, and the test all the way through, is reasonableness; and certainly, as seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion."
21. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-
"I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer."
He continued at Paragraph 19:-
"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal."
22. In Fuller v London Borough of Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-
"In brief the council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the 'range or band of reasonable responses'. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments on unfair dismissal is a reassurance of objectivity."
At Paragraph 38 of the decision, he continued:-
"On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council's dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim."
23. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-
"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite.
"In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."
24. In this case the claimant's representative argued strongly that the employer had acted unfairly in taking into account expired warnings. They referred us to two authorities on the issue. In William Grant and Sons Ltd v Joseph Devlin (EATS/0074/03 25 March 2004), the EAT upheld the Employment Tribunal's decision that the employee's dismissal had been unfair on various grounds including that the employer had taken account of the expired warning. Lord Johnston presiding in the EAT said (at paragraph 10) that:-
"A final written warning, which is given a time limit, becomes null and void at the expiry of that time limit and should not be used for any purpose. Accordingly we agree with tribunal that the employer should not have taken this into account and undoubtedly did."
25. We were also referred to the decisions in Diosynth Ltd v Thomson [2006] IRLR 284 which related to a situation where an employer had taken account of a 12 month final warning which had just expired before the act of misconduct which "tipped the balance" in favour of the claimant's dismissal. The two decisions just referred to were decisions of the Employment Appeal Tribunal. The leading authority which we were also referred is a decision of the Court of Appeal in England and Wales, Airbus UK Ltd v Webb [2008] EWCA Civ 49. The judgment given by Mr Justice David Richards in that case specifically cited the judgment of Elias J in the EAT, where Elias J referred to the view of his lay colleague, Mrs Mills that employers and employees act on the basis that the slate would be "wiped clean" once a warning has expired and that it would undermine the disciplinary procedure otherwise. The judgment also noted that the employer could always give himself room for manoeuvre by drafting the procedural rules to cater for exceptional circumstances.
26. The leading judgment in Webb was given by Mummery LJ who, with customary clarity, set out both the factual background and the legal position. The question of the expired final warning which had been applied to Mr Webb arose from a finding that he and a number of colleagues (who had all been involved in misconduct) should be liable for dismissal unless there was some good reason to the contrary. The employer then concluded that as the other four employees had good disciplinary records, the usual penalty of dismissal could be mitigated by substituting a lesser penalty. In the case of Mr Webb, however, he had previously been disciplined for a similar offence so the mitigating factor was not present and the normal penalty of gross misconduct was applied. (In fact the previous misconduct was such that Mr Webb had initially been dismissed and the dismissal had been reduced to a final warning on appeal.) Shortly after that final warning had expired he had committed a very similar act of misconduct which would have justified dismissal independently of the warning. Mummery LJ also considered the judgments in Grant v Devlin referred to above and stated as follows:-
"56. Although there are general statements in the EAT judgment supporting Mr Webb's contention that the expired warning should be disregarded for all purposes, neither case is in fact authority for proposition of law that if an employer takes account of earlier misconduct for any purpose, in respect of which a final warning was given but has expired, that fact alone necessarily means that the employer has acted outside the range of reasonable responses and that the dismissal for that reason is unfair. The language of section 98(4) [the GB equivalent of Article 130 of the 1996 Order] is wide enough to cover the employee's earlier misconduct as a relevant circumstance of the employer's later decision to dismiss the employee, whose later misconduct is shown by the employer to the EAT to be the reason or principal reason for the dismissal. The expired warning does not make the earlier misconduct an irrelevant circumstance under the section. I very much doubt whether in either case the EAT intended to cut down the width of section 98(4) which I regard as the key to the resolution of this difficult case. In my view, this appeal turns on the broad range of relevant circumstances to be taken into account rather than on the contractual treatment and effect of the final warning, or any possible distinctions between the final warning and the conduct for which it was received ...
"72. ... Diosynth is not authority for the general proposition of law that the misconduct, in respect of which a final warning was given, but has expired, can never be taken in account by the employer when deciding to dismiss an employer, or by a tribunal when deciding whether that employer has acted reasonably or unreasonably. It did not decide that the earlier misconduct and the expired warning are irrelevant circumstances of the case or are irrelevant to the equity and substantial merits of the case. It did not decide that the dismissal is necessarily unfair if account is taken of the expired warning. That would be difficult to reconcile with a flexible approach indicated by the broad terms of section 98(4).
"73. Diosynth was addressing a different issue than that which arose [in the Webb case]. As Lord Philip pointed out in paragraph 27, on the facts of that case, the position of the employer was that the expired warning "tipped the balance in favour of dismissal" as the other factors taken together would not have justified dismissal. In those circumstances the expired warning was part of the set of facts that operated on the mind of the employer in his decision to dismiss. It was the principal reason for the dismissal. As the warning had ceased to have effect, it was not reasonable for the employer to rely on it as the principal reason for the dismissal.
"74. That was not the case here. Subsequent misconduct on its own was shown by Airbus to have been the reason, or the principal reason for dismissal ...".
27. Lord Justice Mummery then referred to the guidance given by Langstaff J in Wincanton PLc v Stone [2013] IRLR 178 where he stated, as follows:-
(1) The tribunal should take into account the fact of that warning.
(2) A tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a tribunal is entitled to give that such weight as it sees appropriate.
(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the tribunal is satisfied as to the invalidity of the warning.
(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore tribunal, should be alert to give proper value to all those matters.
(5) Nor is it wrong for a tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.
(6) A tribunal must always remember that it is the employer's act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur."
28. In Davies, Lord Justice Mummery added some comments in relation to those made by Elias LJ at the EAT. He stated as follows:-
29. We have also found it helpful to refer to a very recent Court of Appeal decision to which counsel did not refer us. In Way v Spectrum Property Care Ltd [2015] EWCA Civ 381, Lord Justice Clarke in giving the judgment of the court stated as follows:-
"36. The correct approach to reliance on final warnings has been considered in a number of authorities. In Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, Mummery LJ stated:-
"20. As for the authorities cited on final warnings, Elias LJ observed, when granting permission to appeal, that the essential principle laid down in them is that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it. I agree with that statement and would add some comments.""
30. In this case the claimant argued that the respondent should not apply the 2009 Absence Policy retrospectively. In particular, given that five years had elapsed between the introduction of that policy and the date of the claimant's dismissal, he argued that the respondent should not have looked back to an absence related warning given to the claimant in September 2008 and taken into account in applying the "six year rule" which grounded the final written warning given to the claimant in August 2013. The claimant therefore was not arguing that expired warnings had been taken into account when he was dismissed, as there was a final written warning in force at the time. Rather his argument was that the final written warning had been based in part on absence related warnings which had already expired and that warning should not have been used to ground his dismissal when he had further absences while the final written warning was still live. The respondent's case was that this flexibility for the employer to look back at previous absence related warnings in the last six years was written into the Absence Policy and had been negotiated with the union representatives. The term had been agreed as a method of preserving a generous and beneficial company sick pay scheme for the vast majority of the employees.
31. The claimant's representative referred us to Chitty on Contracts (Volume 1 General Principles, Thirty-First Edition) at Chapter 14-009. He argued that although the Absence Policy was part of the terms and conditions applied to the claimant, the contractual rules should be construed against the employer in accordance with the principle of "contra proferentem". The paragraph reads:-
"This principle of construction embraces two differing, but closely related, principles. First, since the party seeking to rely upon a clause bears the burden of proving that the case falls within its provisions, any doubt or ambiguity will be resolved against him and in favour of the other party. Secondly, as in the case of any other written document, in situations of ambiguity the words of the document are to be construed more strongly against the party who made the document and who now seeks to rely on them ... ".
REASONS AND DECISION
32. It seems to us in considering our decision that there are two main issues for us to consider. The first relates to the Absence Policy and specifically whether it is appropriate for a final written warning to be based (at least in part) on two previously expired warnings, one of which was five years old and the other three years old at the date of issue of the final written warning. It also has to be considered whether it is fair for the employer to introduce an Absence Policy which retrospectively allows them to consider expired warnings dating back six years prior to a further "trigger point" for possible disciplinary action in relation to absences. The second issue which has to be considered is whether the dismissal of the claimant was fair and reasonable in all the circumstances: in the time honoured phrase, did it fall within the band of reasonable responses to the claimant's behaviour? and was the decision to dismiss the act of a reasonable employer?
(1) The Absence Policy
The evidence from the respondent (which was largely uncontradicted) was that the Absence Policy had been introduced to deal with the problem of persistent absences. The respondent's business deals with fresh food, principally dairy products, which must be processed promptly otherwise the product would be spoilt. It was not disputed that there had been a major difficulty in relation to absenteeism and that this was costly to the respondent. This was particularly so given that the respondent had a generous company sick pay scheme which the employees were anxious to preserve. In this situation we can appreciate that the union representatives negotiating with the respondent's Human Resources Directorate were keen to find a solution which would allow the company sick pay policy to be preserved. We heard evidence from a full-time union official indicating that no full-time union representatives were involved in the negotiations in 2009 when the "six year rule" was introduced. We assume however it would have been a matter for the union representatives on site to involve their full-time colleagues had they thought it necessary and appropriate. It was not put to the respondent's witnesses that their failure to involve the full-time union representatives in any way invalidated the policy. The claimant's representative had sought to challenge the Absence Policy on the basis that it was retrospective in nature, but we cannot see that this of itself would invalidate the policy, if it was freely negotiated between management and unions.
33. The Absence Policy introduced by the respondent in 2003 allowed them to look back at expired warnings for the previous three years. Once an employee reached a further "trigger point" which could lead to disciplinary action, he could be issued with a final written warning, taking into account the previous absence related and already expired warnings. In 2009 that period of time was extended to six years after negotiations with the union, and with the specific aim of reducing absenteeism. Employees were given only a week's notice of the new policy. They were however all notified of the new policy and given a copy of it, so no one could say they had not been made aware of it. We are conscious of the need to balance certainty for the employee against the need of an employer to deal effectively with questions of persistent absence. We can appreciate that the Absence Policy was put in place largely to deal with issues of unwarranted absence, which may be frequent and short-term absences. As against this, employees will be ill from time to time and may need to take time off. Some individuals have robust health and others do not. There is always a balance to be struck between allowing a genuinely ill employee proper time to recuperate and guarding against abuse of the sick pay policy.
34. It is also important to point out that with any policy, whether an Absence Policy or a Disciplinary Policy, the employer will always have a discretion as to how they act. It is obviously important that they act in a way which is consistent as regards different employees. In the case of genuine illness related absences however a certain amount of discretion can be exercised in deciding whether or not it is then appropriate to move to disciplinary action and the issue of a warning. In the claimant's case, the respondent made the point that the respondent had twice exercised discretion, once in reducing a final written warning to a written warning, and secondly in 2010, when they disregarded a period of time when the claimant had to have surgery for a hernia. The employer did not however apparently disregard the lead up absence when the claimant was off ill after the hernia was diagnosed, but before he went into hospital for his surgery. That absence therefore appears to have counted towards the issue of a final written warning for absence in 2010.
35. We have taken into account the directions given by Lord Justice Mummery in Airbus v Webb (see above paragraph 26) and also the authorities in relation to final written warnings which were summarised in the Court of Appeal in England and Wales in Way v Spectrum Property Care Limited [2015] EWCA Civ 381. (See paragraphs 27 and following above). Having considered the authorities we turn then to consider first of all the question of the final written warning which was given to the claimant and whether it should be considered invalid. In accordance with Lord Justice Mummery's dicta in Davies (see paragraph 27 above) we note that it is relevant for us to consider whether the final written warning was issued in good faith, whether there were prima facie grounds for following the final written warning procedure and whether it was manifestly inappropriate to issue the warning. Having considered this matter carefully on balance we believe that the final written warning was issued in good faith and that it was not inappropriate to issue it. We have considered and discussed this matter at some length. We had reservations about an Absence Policy which allows an employer to consider "spent" warnings and in particular, we had concerns about a policy which allows an employer to take into account spent warnings over a period of the previous six years. We consider this to be a particular lengthy period of time and seems to us to be a stringent policy. That said, the policy was introduced after negotiations with the unions and was clearly agreed by the unions with management. It also fair to say that the policy was agreed to meet a specific concern, namely abuse of the generous sick pay scheme which the employer allowed all its staff. In those circumstances, it appears that the price to be paid for a generous sick pay scheme was a more rigorously managed Absence Policy. The overall fairness of the scheme, it seems to us, can only really be put in question if it was manifestly unjust or unfair. We believe this is not the situation in this case. We do not consider it is our role to pronounce on the validity or fairness of an Absence Policy, especially where there is nothing in it which is manifestly unlawful. Furthermore, there is nothing in the evidence before us which suggests that the changes to the Absence Policy were unilaterally imposed by management. While six years seems to us a long period to take into account in assessing absenteeism, this is the period which was negotiated between management and unions. We do not consider that the principle of contra proferentem is relevant in this case: the quote from Chitty to which Mr Friel referred relates to where there is some ambiguity in the wording of a clause. That is not the case here: the Absence Policy is clear in its wording and there is no doubt as to what is meant.
36. The claimant had on two occasions reached the "trigger point" for disciplinary action and had been issued with two warnings, one verbal and one a final written warning in April 2010. Following that date, he had an absence which had been disregarded for the purposes of the sickness absence policy and then had a further run of absences which led to him reaching a further trigger point resulting in the final written warning in August 2013. There is nothing in the evidence before us to show that the final written warning was not issued in good faith or that there were no prima facie grounds for issuing it. Accordingly we believe that there is nothing in the evidence before us which would lead us to question that final written warning or to such it should not have been relied on by the employer.
(2) Was the dismissal fair or unfair?
37. This brings us to the second question which we have to consider, namely whether the dismissal of the claimant was fair and reasonable in all the circumstances or not. As Lord Justice Mummery said:
"The function of the EAT is to apply the objective statutory test of reasonableness to determine whether the final written warning was a circumstance which a reasonable employer could reasonably take into account in the decision to dismiss the claimant for subsequent misconduct".
38. We are certainly of the view that the final written warning was a circumstance which the respondent could take into account. That final written warning was still "live" when the claimant had further absences of two days in June 2014. He had however maintained a completely clear attendance record between August 2013 and June 2014. As Lord Justice Mummery stated:
"The broad test laid down in [Article 130] is whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant".
39. We have considered carefully whether dismissal of an employee during the lifetime of a final written warning, for a further "offence" of a similar nature to that for which the final written warning was issued, is sufficient reason to dismiss the claimant.
40. It is important to bear in mind that the Absence Policy was put in place for a specific reason, and clearly sets out that "if a further occasion of absence occurs whilst the Final Written Warning is in force, a dismissal may [our emphasis] occur". We have quoted above the relevant provisions of the Disciplinary Policy in this regard (see paragraph 6 above). That policy states that:
"In exceptional circumstances, the Company may seek an employee's agreement to demotion or suspension without pay or other penalty as an alternative to dismissal. Where it is deemed appropriate, a Final Written Warning may also be issued or continued in force".
We were concerned in this matter as to whether the respondent had actually taken into account the claimant's previous work record, the fact that apart from absenteeism, his timekeeping was generally good, that he did not have many absences for sick appointments, that he had shown a willingness to work outside of normal hours and involve himself in various projects. Mr Evans clearly stated in his evidence that he had taken this into account in dealing with the claimant's appeal against the final written warning but it was not restated in relation to the dismissal as such.
41. Mr Acheson, when asked in cross-examination whether he had considered demotion or suspension as an alternative, said that he had taken this into account, but did not consider it appropriate in this case. The matter was not enlarged on any further. The notes of the appeal meeting show that the claimant and his union representative raised mitigating factors, including other aspects of the claimant's work history. The appeal outcome letter from Mr Acheson to the claimant refers to his investigation and "careful consideration of the points raised by yourself and your union official." Mr Acheson also took account of how the claimant's managers had applied discretion in relation to absence and specifically the absence in June 2013.
42. We are conscious that we must not substitute our own view for that of the employer. On the other hand we are also aware as stated in the decision in Bowater v North West London Hospitals NHS Trust (see paragraph 21 above) that:
"The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer".
43. We were perturbed that an employer would dismiss an employee of almost 17 years' service on foot of a final written warning which had only two months left to run, on the basis of a further two days absence for a genuine illness, without considering other options. In such a situation it appeared to us a reasonable employer might well exercise its discretion not to dismiss, but to consider some other sanction. That said, the claimant's absenteeism record was not good, he had two previous warnings for absence within the previous six years, and subsequent absences which had led to him reaching a "trigger point" resulting in the final written warning. If we had been satisfied that the employer had simply followed the Absence Policy mechanistically and had not weighed up the claimant's individual situation, we would have found that dismissal was not the action of a reasonable employer. In this case however it is clear to us on the basis of Mr Acheson's evidence in cross-examination, the notes of the appeal meeting and the appeal outcome letter that he did give some consideration to alternative sanctions and decided that they were not appropriate in this case. In our view, it is not appropriate for us to substitute our view for that of the employer and accordingly it is our finding that the behaviour of the respondent in this matter fell within the band of reasonable responses. While the response adopted by the respondent in this case may not have been the response which the tribunal would have given, it is not our function to substitute our view for the employer's. For all these reasons, the claimant's claim is dismissed.
Employment Judge:
Date and place of hearing: 28 and 29 April 2015, Belfast.
Date decision recorded in register and issued to parties: