Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   2210/15

 

 

CLAIMANT:                        Heather Theunissen

 

RESPONDENT:                 Department for Employment and Learning

 

 

DECISION

The unanimous decision of the tribunal is that the claimant’s complaints of unfair dismissal and breach of contract are dismissed.

 

 

Constitution of Tribunal:

President:                 Miss E McBride CBE

Members:                 Mr B Hanna

                                    Mr R McKnight

 

Appearances:

By e-mail dated 24 February 2016 the claimant informed the Tribunal Office that she would not be attending the Hearing due to “ongoing medical conditions”.  She also informed the Tribunal Office that she did not wish for the Hearing to be postponed and requested that it continued in her absence.

The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

The tribunal announced its decision orally following the conclusion of the Hearing on 1 March 2016.  Written reasons for that decision will be issued in due course.

 

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing:  1 March 2016, Belfast

 

Date decision recorded in register and issued to parties:

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   2210/15

 

 

CLAIMANT:                        Heather Theunissen

 

RESPONDENT:                 Department for Employment and Learning

 

 

DECISION

The unanimous decision of the tribunal is that the claimant’s complaints of unfair dismissal and breach of contract are dismissed.  The tribunal announced its decision orally following the conclusion of the Hearing on 1 March 2016.  The written decision was issued to the parties on 10 March 2016.  The written reasons for that decision are set out below.

 

 

Constitution of Tribunal:

President:                 Miss E McBride CBE

Members:                 Mr B Hanna

                                    Mr R McKnight

 

Appearances:

By e-mail dated 24 February 2016 the claimant informed the Tribunal Office that she would not be attending the Hearing due to “ongoing medical conditions”.  She also informed the Tribunal Office that she did not wish for the Hearing to be postponed and requested that it continued in her absence.

 The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

 

REASONS

 

The claim and response

 

1.         On 2 September 2015 the claimant presented a claim to the industrial tribunal.  At paragraph 7.1 of the claim form, the claimant indicated that her complaints were:

 

“Unfair Dismissal

Breach of Contract: £25,000

Compensation payment which I was advised by HR to take then I didn’t get it”

 

At paragraph 7.4 of the claim form, the claimant gave the following details of her claim:

 

“I HAD BEEN OFF WORK ILL DUE TO ANXIETY AND STRESS OVER THE PAST YEAR.  I WAS ADVISED AND IT WAS AGREED BY BELIND (sic) TUNNAH DEL HR THAT IF I LEFT THE NICS AFTER 40 YRS UNDER THE GROUNDS OF INEFFICIENCY THAT I WOULD GET COMPENSATION OF 25,000.  I AGREED AND MY CONTRACT WAS TERMINATED.  NOW THEY SAYING (sic) I’M NOT ENTITLED TO THE MONEY, AS PENSIONS BR MADE AN ERROR.  I GAVE UP MY JOB ON THIS LADIES (sic) ADVICE, AND ALSO MR THOMAS MCKILLOP OF NIPSA DEL REP. IS AWARE OF THE CASE.  I HAVE ALL WRITTEN EVIDENCE TO PROVE THIS INFORMATION.  BECAUSE OF HER ADVICE I HAVE NO LONGER A JOB, AND I HAVE NOT BEEN ABLE TO APPLY FOR THE EARLY EXIT SCHEME FROM NICS.  AND I HAVE BECOME VERY ILL WITH MY ANXIETY AND STRESS.  IT REALLY UPSET ME TO THINK WHAT THESE PEOPLE HAVE DONW (sic) AFTER 40 YRS EMPLOYMENT WITH THEM.”

 

2.         On 23 October 2015 the respondent presented a response in which:

 

(i)        it accepted that the claimant had been dismissed on 2 July 2015 but contended that the claimant had been fairly dismissed on the ground of incapability arising from ill health;

 

(ii)       denied the claimant’s complaint of breach of contract. 

 

3.         On 27 October 2015 the Tribunal Office sent the respondent’s response to the claimant. 

 

4.         On 28 October 2015 the claimant sent the following e-mail to the Tribunal Office:

 

                        “I wish to add further information relating to my ongoing case ....  I note from the Respondents letter that they mention my sick record over the past three years ...  I would like to have it noted that the period from February 2015 to July 2015 was caused by the Dept of Employment.  It was work related stress.  I had returned to my work in January 2015 which is not in the respondents letter and was happy to continue until i was at least 60 yrs of age.  I was back at work at least six weeks when I started receiving e-mails and letters to attend meeting relating to my dismissal.  I felt bullied and intimidated.  I had been off with anxiety and having returned these letters made my anxiety return and I had to take off. 

 

                        During the next few weeks i spoke with Belinda Tunnah and it was during a conversation with her that SHE suggested and Advised that i should leave under the grounds of dismissal as it would be the way forward for me and i would receive COMPENSATION of 25,000.  Belinda also asked that i would e-mail her my decision to leave after talking it over with my husband.  I e-mailed the details etc and she stated that she would make a decision based on this.  The outcome would be that i would leave and to get my payment. 

 

                        During this time i also spoke with my union rep Thomas McKillop NIPSA.  Thomas was also in regular contact with Belinda and as you will see from the attached e-mail that together Thomas and Belinda AGREED and both confirmed to me in writing that i should leave and also that i would receive a lump sum of 25,000. 

 

                        At one stage when i told Belinda i was upset at having to chose to be dismissed to get the bigger amount of compensation and how was i going to tell my family, Belinda said “Just tell them you took a Package” also i will attach a copy of the part in the letter from Belinda where She Confirms my payout

 

                        For someone who was back at work and getting on well to be sitting here now upset and annoyed re what has happened i think the Respondent needs to go back to their Clients and get the truth.  My Union Rep Thomas will be available to confirm all details above.”

 

            In addition the claimant sent:

 

(i)        a photocopy of what appears to be an extract from her dismissal letter, dated 19 May 2015, which stated:

 

“In cases of dismissal due to unsatisfactory attendance a compensation award may be made where it is accepted that the inability to attend work is beyond the control of the individual but where medical retirement is considered inappropriate.  I can confirm that you qualify for the full amount of compensation payment ....”

 

(ii)       an e-mail dated 5 May 2015 (which is set out at paragraph 53 below) from Mr McKillop of NIPSA to her in relation to the estimates which had been provided in relation to this compensation payment; and

 

(iii)      an e-mail dated 6 May 2015 (which is also set out at paragraph 53 below) from her to Mr McKillop. 

 

5.         Following a Case Management Discussion on 16 December 2015, which the claimant participated in by way of telephone conference, the case was listed for hearing on 1 and 2 March 2016. 

 

6.         On 3 February 2016, the claimant sent a further e-mail to the Tribunal Office in the following terms:

 

                        “Please find attached e-mails which i believe are significant in my case against the Department of Employment and my unfair dismissal.  These e-mails are conversation’s (sic) between Belinda Tunnah, Thomas McKillop (union rep) and myself.  I was made to believe that a Contract had been set up.  As you can see in the attached e-mail conversation’s (sic) both Belinda and Thomas said it was my way forward and I then decided to take up their advice. 

 

                        I was to agree to take the Compensation payment in lieu of being dismissed as advised by Belinda Tunnah.  Belinda has now stated that she was given wrong information by Pensions branch.

 

                        What i (sic) do not understand is, that in my 40 years as a Civil Servant any time I advised or made a payment to someone the details were check and double check (sic) by line manager’s (sic) and therefore lead (sic) to correct and accurate correspondence.  Why was this not done in my case considering the amount of compensation?

 

                        Regarding my dismissal, I appealed DEL’s decision and had my interview in October 2015 with June Ingram (DEL), The Department has since upheld there (sic) decision to Dismiss me.  How can a person who never met me before and only had previous notes of the case etc make a life changing decision after it was the department who made me go off sick again.  I cannot understand why?

 

            I am now receiving ESA sick benefit, no longer a salary and definitely not the compensation payment i was promised.  I have also decided to call no witness’s (sic) as the information providing the conversations are attached.”

 

            The claimant attached the e-mail of 5 May 2015 from Mr McKillop her trade union representative to her (which she had already sent to the tribunal on 28 October 2015 - see paragraph 4 above) and an e-mail dated 13 May 2015 from Mr McKillop to Belinda Tunnah.  Those two e-mails are set out at paragraph 53 and 55 below).

 

7.         On that same date i.e. 3 February 2016 the claimant sent a further e-mail confirming that she had sent the e-mail set out above and asked if it was possible for that e-mail to be included in her case file along with attachments. 

 

8.         On 24 February 2016 the claimant sent a further e-mail in which she informed the tribunal that due to ongoing medical conditions “brought on again by this awful situation”, she felt that she could not attend the Hearing on 1 and 2 March 2016 but did not wish for the Hearing to be postponed and requested that it continue in her absence.  The claimant did not attend the Hearing on 1 March 2016 and in light of this e-mail and the provisions of Rule 27(5) and (6) of the Industrial Tribunal Rules of Procedure 2005 the Hearing proceeded in her absence.  The respondent provided the tribunal with a folder which contained the signed witness statements of the respondent’s witnesses namely:

 

(i)        Linda Toland, a staff officer in the respondent’s Human Resources Management Attendance Team;

 

(ii)       Belinda Tunnah, an acting Grade 7 Establishment Officer in the respondent’s Human Resources Department;

 

                        (iii)       June Ingram, a Grade 5 Director within the respondent; and

 

                        (iv)       the claimant’s witness statement with her name typed at the end.

 

9.         In addition, the respondent provided the tribunal with a bundle of documents which included an e-mail dated 10 February 2016 from the claimant to the respondent’s solicitor, the e-mail of 13 May 2015 from Mr McKillop to Ms Tunnah (referred to at paragraph 6 above and set out at paragraph 55 below) and a signed statement from Mr John Dallat MLA.

 

10.      Prior to the commencement of the Hearing on 1 March 2016 the tribunal read the witness statements of the respondent’s witnesses, the claimant and Mr Dallat and the documents which were referred to in those witness statements.  Ms Toland, Ms Tunnah and Ms Ingram gave evidence under oath and adopted their witness statements as their direct evidence and Mr Sands made oral submissions.

 

Relevant Facts

 

11.      Having considered the sworn evidence of the respondent’s witnesses, the unsworn statements of the claimant and Mr Dallat, the documentation provided by the claimant, as set out above, and the documents in the bundle together with the submissions of Mr Sands, the tribunal found the following relevant facts.

 

The Inefficiency Sickness Absence Policy

 

11.1    The Northern Ireland Civil Service operates an Inefficiency Sickness Absence Policy.  Paragraph 1.1 of the Policy provides:-

 

                        “While it is recognised that staff will occasionally have reasons to be absent from work through sickness or injury, any absence may cause operational difficulties, including quality, efficiency and increased costs.  The aim of this Policy is therefore to promote regular attendance at work, minimise absence across the service and to provide a framework within which sickness absence can be effectively managed.” 

 

11.2    Levels of sickness absence within the Northern Ireland Civil Service have been closely monitored since 2004 when ministerial targets were introduced.

 

11.3    The Policy covers two types of inefficiency sickness absence:

 

                        (1)       frequent short-term absence; and

(2)       long-term sickness absence.

 

(1)       Frequent short-term sickness absence

 

11.4    Review points, which are four occasions or 10 working days in a rolling 12 month period are used in the Policy to identify the level and pattern of sickness absence that require closer examination.  If an employee’s level of sickness absence reaches a review point, Departmental HR and/or the employee’s line management will assess what action, if any, might be required taking into account a range of factors including:

 

·         Nature of the illness or injury

·         Circumstances falling within relevant legislation, including disability legislation

·         Frequency/pattern of absences;

·         Prior sickness absence record

·         Relevant information contained in return to work records

·         Any relevant circumstances highlighted by the employee or his/her line management.

 

11.5    Having reviewed an employee’s attendance, Departmental HR and/or line management will decide whether formal inefficiency action is or is not required.  Where a decision is taken that no formal inefficiency action is required, the employee will be informed accordingly.  The employee will also be informed that his/her attendance will continue to be monitored closely and that any further absences may result in inefficiency action being taken.

 

11.6    Where a decision is taken to consider formal inefficiency action, the Policy requires the following procedure to be followed:

 

“4.7 Prior to initiating formal inefficiency action your Departmental HR or line management will write to you and invite you to a meeting to discuss your sickness absence record. The letter will make clear the purpose of the meeting and the fact that inefficiency action is being considered. You will have the right to be accompanied at the meeting by a Trade Union representative or work colleague (See paragraph 4.12 and 4.13).

 

4.8 If you are unable to attend the meeting this will be rescheduled, as soon as possible thereafter; the meeting should normally take place within 10 working days of the original date. Should you fail to attend the meeting without a reasonable explanation acceptable to your Department, a decision will be taken in your absence, based on the information available.

 

4.9 At the meeting, you will be given an opportunity to explain any circumstances which might be contributing to your level of sickness absence, or any other relevant information which you feel should be taken into account. If, during the meeting, information about a medical condition is presented, or if you or your Departmental HR or line management believe that a referral to OHS may be necessary, a decision on inefficiency action may be deferred pending the outcome of the referral.

 

4.10 Following the meeting, a summary will be prepared and copied to you and, if accompanied, to your Trade Union representative or work colleague within 5 working days of the meeting. You will be given a further 5 working days to agree the summary or suggest any factual amendments. While every effort will be made to agree the summary of the meeting, should there remain disagreement over the factual contents of the summary, your comments will be appended to the summary of the meeting. Should you fail to respond regarding the summary within the timescale without a reasonable explanation acceptable to Departmental HR or line management the original summary will be treated as agreed.

 

4.11 Where, following the meeting, a decision is taken that no formal inefficiency action is to be taken, you will be advised in writing and the letter will be copied to your Trade Union representative or work colleague if you were accompanied.”

 

Written Warning

 

11.7    Paragraph 5.2-5.5 of the Policy provide that if a decision is made following the meeting to proceed with formal inefficiency action, the employee will be issued with a Written Warning by way of a letter.  The Written Warning letter will inform the employee that his/her level of attendance will continue to be monitored and will set out the implications which include moving to a Final Written Warning and ultimately dismissal should the employee be unable to make an immediate and sustained improvement in his/her attendance throughout the warning period which is two years from the date on which the Written Warning letter has been issued.  The Written Warning letter will also advise the employee of the right of appeal against the Written Warning.

 

Final Written Warning

 

11.8    Paragraph 5.6 of the Policy provides that where an employee has a valid Written Warning in place and his/her level of sickness absence has not improved to an acceptable level, Departmental HR will then consult with line management and consider if it is appropriate to move to the Final Written Warning stage and, if so, will invite the employee to a meeting in line with the procedures set out at paragraph 11.6 above.

 

11.9    Paragraphs 5.7 to 5.10 of the policy provide that if following the meeting a decision is made to issue a Final Written Warning the employee will be notified of the Final Written Warning by letter.  The Final Written Warning letter will inform the employee that his/her level of attendance will continue to be monitored and will set out the implications which include dismissal if an immediate and sustained improvement in employee’s attendance is not made throughout the warning period which is two years from the date on which the Final Written Warning letter was issued.  The Final Written Warning letter will also advise the employee of his/her right of appeal against the Final Written Warning.

 

Dismissal

 

11.10  Paragraph 5.12 of the Policy provides that where the level of sickness absence has not shown a significant and sustained improvement during the period of a Final Written Warning, Departmental HR will write to the employee and invite him/her to a meeting to consider dismissal. 

 

            Paragraph 5.13 of the Policy provides that:

 

“If following this pre-dismissal meeting and following consultation with relevant parties, including where applicable, the OHS (Occupational Health Service) and WSS (Welfare Support Service), it is decided that the level of sickness absence can no longer be sustained, Departmental HR will write to you and confirm the decision to dismiss you on grounds of inefficiency. The letter will confirm your effective date of dismissal, taking account of the Notice Period, see paragraph 16. You will also be advised of your right of appeal - see paragraph 8.6 - 8.11. The letter will be copied to your line management and if you request to your Trade Union representative or work colleague.”

 

Long term sickness absence

 

11.11  Long term sickness absence is defined at paragraph 6.1 of the Policy as 20 consecutive working days or more.  Paragraph 6.1 states that the primary aim of the Policy is to manage long-term sickness absence so as to help facilitate the employee’s return to work at the earliest reasonable point. 

 

Paragraph 6.2 provides:-

 

“In all long-term sickness absence cases Departmental HR and line management will work closely with you, your Trade Union representative (should you request such involvement) and the OHS through appropriate and timely referrals.  The WSS (Welfare Support Service) also has a key role in managing sickness absence, both in terms of providing support and advice when you are ill and liaising with Departmental HR and line management as required.” 

 

            Paragraph 6.3 provides:-

 

“When you have been absent for 20 consecutive working days you will receive a letter that outlines the sources of help and support available, such as the WSS and the EAP. In addition, this letter will provide details on how your case will be handled, including medical referrals and contact arrangements, and will serve to notify you of the process to be followed should your absence continue.”

 

Regular contact

 

            Paragraph 6.4 provides:

 

“It is important that regular contact between you and someone in your line management is maintained throughout your absence. The regularity and form of contact should be agreed between you and your line management (normally this would be every two weeks). This contact should be by the most appropriate means, including email, letter, telephone or home visits.”

 

Paragraph 6.5 provides:

 

“You must arrange to update your line management regularly on any medical consultations that may provide further information on the progress you are making and a possible date of return to work, or if your health has not improved or has deteriorated further. This will help your line manager both to decide the most appropriate course of action to assist you and also to enable suitable planning/organisational arrangements in terms of the workload during your absence to be made.”

 

Paragraph 6.6 provides:

 

“Departmental HR or line management may refer your case to the WSS who will then contact you to discuss your circumstances. Welfare will also remind you of the support services available and provide you with support and guidance to help facilitate your return to work.”

 

Review Meetings

 

              Paragraph 6.7 provides:

 

“Formal Review Meetings will be held from time to time, as determined by Departmental HR or line management. The meetings may be timed to coincide with the outcome of the OHS referral process and will be led by Departmental HR or line management. You will have the right to be accompanied at any such meeting by a Trade Union representative or work colleague (See paragraph 4.12 and 4.13).”

 

Paragraph 6.8 provides:

 

“The purpose of the Review Meeting is to discuss your absence and to give you an opportunity to present any information that you think may be relevant to your case. The meeting will also be used to consider any OHS medical opinion that may be available on your fitness or otherwise for work and to explore any reasonable adjustments that might facilitate your return to work at the earliest reasonable point.

 

Paragraph 6.9 provides that employees will be given a written summary of the review meeting.

 

Paragraph 6.10 provides that:

 

“Should you be unable to attend the Review Meeting due to your illness, you can provide a written statement which will be considered by Departmental HR and/or line management in your absence.”

 

Warnings during long-term sickness absence

 

            Paragraph 6.11 provides:

 

“The Written Warning and Final Written Warning process is set out at paragraph 5.2-5.11 will not apply when you are on a period of long-term sickness absence.  Your sickness absence will be case managed by Departmental HR and line management, in consultation with the OHS and Welfare Support Service, as appropriate. 

 

Paragraph 6.12 provides:

 

“You will be consulted during your absence from work through Review meetings and correspondence.  It is important to note that while the formal warning process will not apply (as above) dismissal will remain an option should the Department decide that it can no longer sustain your absence.”

 

Paragraph 6.13 provides:-

 

Departmental HR and line management will also review your overall sickness absence record on your return to work and may consider that formal warning action is appropriate.  Any such warning will be influenced by:

 

(a) any pattern of repeated periods of longterm sickness absence or combinations of intermittent and long-term absence; and

 

(b) your level of sickness absence prior to the period of long-term sickness absence.

 

The terms of paragraph 4.5 - 4.11 must be followed before proceeding with formal warning action.”

 

Occupational Health Service Referrals

 

11.12  Paragraph 7 of the Policy which runs to 25 sub-paragraphs sets out the purpose of and the procedure for occupational health referrals including appeals against Occupational Health Service opinion.   

 

            Paragraph 7.1 provides:-

 

“Early intervention is key to the successful management of sickness absence cases. Referral to the OHS is an important intervention and can be made at any time where Departmental HR or line management considers it appropriate. All absences of 20 working days or more must be reviewed with a view to referral. Earlier or more urgent referrals to the OHS may be made where Departmental HR or line management considers such an intervention to be helpful either to you or to the management of your case.”

 

Paragraph 7.2 provides:-

 

            “Departmental HR may decide to refer you to the OHS in order to obtain advice on the following:

 

•              any medical condition affecting your performance or attendance at work;

•              whether a definitive return to work date can be given (and if not, an indication of likely timescale for recovery and return to work);

•              whether you are currently fit to carry out the duties of your grade;

•              whether there are any adjustments to the work tasks or environment that would help facilitate your rehabilitation or an early return to work, and the likely duration of any adjustments;

•              whether your health problem is likely to recur and/or affect future attendance; • other issues specific to your individual case;

•              where appropriate, whether the criteria for early retirement on medical grounds are satisfied. See HR Handbook, Early Retirement on Medical Grounds (Section 2.04).”

 

Appeals

 

11.13  Paragraph 8 of the Policy sets out the procedure for appeals against Written Warnings, Final Written Warnings and dismissal.  The procedure for an appeal against dismissal is set out at paragraphs 8.6-8.11.

 

Paragraph 8.6 provides:

 

“Where a decision is taken to dismiss you on the grounds of inefficiency, the Establishment Officer (Personnel Officer) will give you formal written notice of dismissal on grounds of inefficiency and will advise you of the reasons, including the appropriate period of notice and also your right to an internal appeal. Should you wish to appeal the decision, you must lodge your appeal as soon as possible but no more than 10 working days after the date of the dismissal letter. Appeals received after 10 working days will only be considered in exceptional circumstances and if you provide an acceptable reason for the delay. You will be advised of your right to be accompanied at the appeal by a Trade Union representative or work colleague (See paragraph 4.12 and 4.13).”

 

Paragraph 8.7 provides:

 

“On receipt of such an appeal the Department will acknowledge and arrange for the appeal to be heard. The internal appeal hearing should take place as soon as reasonably possible but, normally, no more than 10 working days after receipt of the appeal. It must be heard by an officer independent of those who made the decision to dismiss and should be at least one grade higher than the decision making officer(s).”

 

Paragraph 8.8 provides:

 

“The role of the officer hearing the appeal is to review the evidence relied upon by the Department in making the decision to dismiss and to decide if the Department has followed procedures and acted fairly and reasonably. He/she will be provided with all relevant documentation, including any Departmental or NICS policies or procedures.”

 

Paragraph 8.9 provides:

 

“The officer hearing the appeal has 2 options in reaching a decision: they can either confirm the original decision to dismiss or set aside the original decision. In either case, they must clearly state in writing the reasons for the decision and any recommendations made. A decision will normally be issued within 15 working days of the hearing date.”

 

Paragraph 8.10 provides:

 

“If the appeal is rejected Departmental HR will advise you in writing of the decision to proceed with dismissal on grounds of inefficiency. ...”

 

Early Retirement on Medical Grounds

 

11.14  Paragraph 7.14 of the Policy provides:

 

“If at any stage your Department thinks, or if you consider that the nature of your medical condition may make retirement on medical grounds appropriate, your case will be referred to the OHS. If OHS advise that the criteria for early retirement on medical grounds have been satisfied and the Department decides to retire you on medical grounds the procedures set out in the HR Handbook, Early Retirement on Medical Grounds, will be followed (Section 2.04). This policy also sets out the procedures to be followed should the OHS advise that your medical condition has not satisfied the criteria for early retirement on medical grounds.”

 

Compensation

 

11.15  Paragraph 9 of the Policy provides that Departments have discretion to pay compensation in cases of dismissal on grounds of inefficiency. 

 

Paragraph 9.1 of the Policy provides:

 

“Departments have discretion to pay compensation in cases of dismissal on grounds of inefficiency. Departments will consider whether compensation should be paid and, if so, how much. In doing so they will assess in percentage terms the extent to which the inefficiency is caused by factors beyond your control and the efforts you have made to remedy the inefficiency and / or the underlying causes of it. Guidance for assessing compensation in such cases is attached at Annex 1.”

 

Paragraph 9.2 of the Policy provides:

 

“The amount of compensation payable will be calculated by applying the percentage determined by the Department to the maximum that could be paid under the Civil Service Compensation Scheme (Northern Ireland). Details of the maximum amounts of compensation that can be paid are set out in Section 11 and Rule 3.3 of the Civil Service Compensation Scheme (Northern Ireland). If a Department decides not to pay compensation, or to pay less than the maximum, you will be informed when notice of dismissal is given.”

 

Paragraph 9.3 of the Policy provides:

 

“In the event that you are dismissed on grounds of inefficiency and you are not paid compensation or paid less than the maximum, you may, subject to eligibility, appeal to the Civil Service Appeal Board against the Department’s decision on compensation. You will have the right to be accompanied at the appeal by a Trade Union representative or other work colleague. The procedures for appeal are set out in the Civil Service Appeal Board Section of the HR Handbook (2.07).”

 

Guidance for assessing compensation in such cases is set out at Annex 1 to the Policy as follows:

 

“Departments have discretion to pay compensation in cases of dismissal on grounds of inefficiency due to unsatisfactory attendance. Departments will consider whether compensation should be paid and, if so, how much.

Although it is not practical to lay down strict criteria against which individual culpability may be assessed, particularly given that it is in the best interests of the individual for there to be flexibility to consider each case on its merits, the following paragraphs give some general guidelines relevant to the decision whether or not compensation should be awarded. Staff whose attendance is irregular may fall into two categories, those whose sickness absence is:

 

(i) Long-term-staff who have been absent for a long period whose absence cannot continue to be covered or tolerated, but whose condition is not judged appropriate for medical retirement. Most such cases would normally qualify for full compensation where medical evidence exists or can be obtained to show that the inability to attend is beyond the control of the individual.

 

(ii) Short-Term-frequent those who have frequent sickness absences for short periods, due either to a specific illness or to an apparently poor level of general health. Staff in this category might qualify for compensation where Departmental HR is satisfied, firstly, after the necessary investigations (including advice from medical advisers where appropriate), as to the nature and severity of the illness concerned, and, secondly, that the member of staff has done everything within his or her power to alleviate the problem.

 

Where investigation establishes that the sick absence provisions are being abused, compensation will not be appropriate.”

 

The claimant

 

12.      The claimant commenced employment with the respondent on 30 June 1975 and was a personal adviser at Executive Officer 2 grade in the Coleraine Jobs and Benefits Office at the time her employment ended on 2 July 2015.  The claimant had 26 absences totalling 142 working days between July 2000 and January 2011, ranging from 1 day to 40 working days for a number of illnesses/medical conditions including gastrointestinal problems, infection, cold/cough/flu, eye problem, musculoskeletal problems/chest respiratory problems and back problems.  The claimant was absent for 22 working days between 2 December 2010 and 7 January 2011 due to chest and respiratory problems.  The claimant was considered for a Written Warning in relation to that absence but no action was taken.

 

Written Warning

 

13.      The claimant was then absent for 72 working days:

 

(i)        1 working day on 15 September 2011 due to abdominal pain;

(ii)       4 working days from 7-10 November 2011 due to flu;

(iii)      66 working days from 9 January 2012 to 8 May 2012 due to non-work related stress; and

(iv)      1 working day on 11 July 2012 due to backache/pain. 

 

            These absences led to the claimant receiving a Written Warning under the Inefficiency Sickness Absence Policy on 22 October 2012 which would remain in place until 21 October 2014.    The letter which informed the claimant of the Written Warning also informed her that if she failed to demonstrate an immediate and sustained improvement in her attendance during the two year warning period, it could lead to further inefficiency action which could ultimately lead to her dismissal.  The claimant was also informed that she had the right to appeal against the decision to issue a Written Warning which she exercised unsuccessfully.

 

Final Written Warning

 

14.       While the Written Warning was in place the claimant was absent for 29 working days between 14 January 2013 and 4 March 2013 due to a cough/sinusitis and on 13 June 2013 she received a Final Written Warning which would remain in place until 12 June 2015.  The letter which informed the claimant of the Final Written Warning reminded her that if she failed to demonstrate an immediate and sustained improvement in her attendance during the two year warning period, it could lead to further inefficiency action which could ultimately lead to her dismissal.  The claimant was also informed of her right to appeal which she did not exercise.

 

The first period of absence during the Final Written Warning period

1 day - 29 July 2013

 

15.      On 29 July 2013 the claimant was absent due to backache/pain.  The claimant was notified, by letter dated 22 August 2013, that her case had been reviewed in accordance with the Inefficiency Sickness Absence Policy, that a decision had been made that no further action would be taken at that stage, but that her attendance would continue to be monitored closely and that any further absences could result in inefficiency action being taken.

 

The second period of absence during the Final Written Warning period

1 day - 13 January 2014

 

16.      On 13 January 2014, the claimant was absent due to a sprain.  The claimant was notified, by letter dated 31 January 2014, that her case had been reviewed in accordance with the Inefficiency Sickness Absence Policy, that a decision had been made that no further action would be taken at that stage but that her attendance would continue to be monitored closely and that any further absences could result in inefficiency action being taken.  

 

The third period of absence during the Final Written Warning period

41 days  23 June 2014 - 30 September 2014

 

17.      The claimant commenced a further period of sickness absence on 23 June 2014 which lasted for 41 working days to 30 September 2014.  As the reason for the absence was categorised as Anxiety/Stress/Depression/Other Psychiatric Illnesses, the respondent’s Early Intervention Procedure was followed as well as the Inefficiency Sickness Absence Procedure.  Ms Toland, a Staff Officer in the Human Resources Department, contacted the claimant’s line manager on 25 June 2014 to obtain background information in relation to the claimant’s absence and on 26 June 2014 Ms Toland sent the claimant a letter informing her that she was sorry to hear that she was unwell and that she wished to help her to resolve any problems she might be having.  Ms Toland asked the claimant to telephone her on 3 July 2014 so that they could discuss areas of concern and to explore support measures to aid the claimant’s recovery and to help her to return to work.  Ms Toland also informed the claimant in that letter that the normal sickness absence and inefficiency procedure and policies would continue to apply during her absence and that she would be referred to Occupational Health Service and Welfare Service.  In addition Ms Toland gave the claimant contact details for the Welfare Support Service and Carecall.  On that same day a stress questionnaire was sent to the claimant which she did not return.

 

18.      Following receipt of Ms Toland’s letter, the claimant telephoned Ms Toland on 3 July 2014 and made Ms Toland aware of the causes of her sickness and the symptoms.  The claimant also informed Ms Toland that there was nothing the respondent could do to help her back to work because her sickness was due to social stressors. 

 

19.      The claimant was visited by a Welfare Officer at her home on 7 July 2014.  The claimant described her symptoms and indicated that she hoped to get back to work as soon as possible but could not give a return to work date.  The Welfare Officer advised the claimant that she could contact Carecall and explained the Absence Management process and the phased return to work process to her.

 

20.      An occupational health assessment of the claimant was carried out on 1 August 2014.  The report stated that as a result of the anxiety symptoms and social stressors:-

 

(i)        the claimant was unfit to carry out the normal duties of her grade at that time;

 

(ii)       adjustments to work tasks or environment to help facilitate rehabilitation or an early return to work were not necessary at that time; and

 

(iii)      a definitive return to work date could not be given and the claimant’s absence was likely to continue for six weeks.

 

21.      On 4 August 2014, in accordance with the Inefficiency Sickness Absence procedure, the claimant was issued with a letter inviting her to a review meeting on 26 August 2014 to discuss her absence, to give her an opportunity to present any other relevant information, to consider the above OHS medical assessment of her fitness or otherwise for work and to explore any reasonable adjustments that might facilitate her return to work at the earliest reasonable point.

 

            The claimant was informed in the letter that she was entitled to be accompanied at the meeting by a trade union representative or a work colleague, that if for exceptional reasons she was unable to attend the meeting on 26 August 2014 an alternative date could be arranged and that if she was too unwell to attend she could provide a written submission detailing any relevant information she wished to have considered in the deliberation of her case.  The claimant was further informed that while the formal warning process would not apply (as the absence was being dealt with under the long-term sickness absence procedure), dismissal on the grounds of inefficiency could be actioned at any time should the Department decide that it could no longer sustain her absence.  The claimant was also informed that if she had special needs or requirements she should contact Human Resources so that the necessary arrangements could be made and that if she had any further queries she could contact HR Connect.

 

22.      On 11 August 2014 a 20 day information letter was sent to the claimant under the long-term sickness absence procedure explaining: how her absence would be managed in terms of support, referral to Occupational Health Service, consultation with her through correspondence and formal review meetings, and contact with line management.  She was also informed that the respondent’s primary aim was to help facilitate her return to work at the earliest point and of the support services she could avail of.  In addition she was informed that while Written Warnings and Final Written Warnings would not be issued during a long term sickness absence, she would be advised through correspondence and review meetings of the implications of her continued absence and that should she return to work, her overall sickness absence record would be reviewed to determine if a warning was appropriate at that time.  It was pointed out in the letter that dismissal would still be an option which could be actioned at any time if the respondent decided it could no longer sustain her absence but that she would be invited to a formal review meeting before any consideration of dismissal and would have a right of appeal against any dismissal decision. 

 

23.      On 20 August 2014 the claimant notified Human Resources that she would not be able to attend the review meeting which had been arranged for 26 August 2014 due to her medical condition.  The claimant was informed on that same day that she could submit a written statement detailing any relevant information if she was too unwell to attend.  On 26 August 2014 the claimant submitted a written submission in which she outlined her symptoms and her treatment and stated that she hoped to be able to return to work within four weeks.  On 28 August 2014 the claimant was informed that her sickness absence would be kept under review and that a further review meeting would be arranged if her sickness absence continued.

 

24.      The claimant’s line manager contacted the claimant during August and September 2014 by telephone when her medical lines were due to expire to find out how she was and to keep her up to date with changes in the office.

 

25.      On 15 September 2014 the claimant was informed, by letter, that she was being referred to the Occupational Health Service for a further examination because she had not been able to return to work by that stage. 

 

26.      On 1 October 2014, before that Occupational Health examination had taken place, the claimant returned to work and was permitted to do so on a phased basis during which time her hours were reduced and her duties were adjusted.

 

The fourth period of absence during the Final Written Warning period

31 days - 22 October 2014 - 5 January 2015

 

27.      On 17 October 2014, following the claimant’s return to work on 1 October 2014, Ms Tunnah, the Human Resources Establishment Officer, requested background information from the claimant’s line manager in relation to the claimant’s three absences, during the Final Written Warning, as that would be taken into account together with any Occupational Health and/or Welfare Support Service reports before a decision would be made on whether to commence inefficiency proceedings in relation to those absences.  The claimant’s line manager was informed that she should advise the claimant that her sickness absence was under review and that the line manager had been asked to provide an input and did so.  The claimant’s line manager provided comments on 21 October 2014 but before Human Resources had considered them the claimant commenced a further period of sickness absence on 22 October 2014 because she became anxious at the prospect of having to attend an interview with Human Resources in relation to her absences. 

 

28.      On 23 October 2014 Ms Hegarty of Human Resources sent the claimant a letter informing her that she was sorry to learn of her illness and hoped that she would be feeling better soon.  Ms Hegarty also informed the claimant that:

 

(i)        in line with normal departmental practice, a referral to the Occupational Health Service was considered necessary to obtain information on the necessary adjustments that may be required to facilitate a return to work and to determine the likely date for her return to work;

 

(ii)       it was important that she was aware that the respondent took long-term absences into account in monitoring regular and effective service by staff and that in certain cases it could lead to dismissal on inefficiency grounds;

 

(iii)      the full details of each case would be considered carefully and that if she was encountering particular personal problems which she wished to discuss she could contact the Welfare Support Service or Carecall. 

 

In addition Ms Hegarty made the claimant aware of Carecall and enclosed an information leaflet.  The claimant was also provided with an information leaflet providing information on the facilities which were available to help NICS staff return to work after illness so that she could discuss it with her General Practitioner. 

 

29.      On 24 October 2014 the claimant was sent a further stress questionnaire which she did not return.

 

30.      On 28 October 2014, Ms Henry, the Employment Service Manager in the claimant’s department, e-mailed Human Resources to confirm that the claimant had taken sick leave from 22 October 2014.  Ms Henry stated that the claimant “felt that the trigger point review following her recent long-term illness had caused a relapse of her stress condition and she just couldn’t handle any more anxiety” and that “she was very distressed that she will lose her job”.  Ms Henry informed Human Resources that she and the claimant’s line manager had assured the claimant that the trigger interview was standard procedure and that no one was judging whether her illness was genuine or not and that she could contact Carecall as well as Welfare which she had already contacted.  Ms Henry also informed Human Resources that she was very concerned as to the claimant’s welfare.

 

31.      The Welfare Officer spoke to the claimant on 3 November 2014 and provided a report to Human Resources on 4 November 2014 in which she indicated that the claimant was keen to get back to work but that it was not possible to predict at that time exactly when that would be.  The Welfare Officer confirmed that the claimant was aware of the phased return to work process. 

 

32.      Given the nature of the claimant’s further sickness i.e. anxiety which had commenced on 22 October 2014, the respondent’s early Intervention Procedure was again followed as well as the Inefficiency Sickness Absence Procedure.  Ms Toland spoke with the claimant’s line manager on 28 October 2014 and on 10 November 2014 she sent the claimant a letter informing her that she was sorry to hear that she was unwell and that she wished to help her to resolve any problems she might be having.  Ms Toland informed the claimant that while she was conscious that the claimant had indicated during their last telephone conversation that the correspondence from Human Resources was adding to her anxiety, she was also conscious of the need to provide the claimant with an opportunity to discuss areas of concern and to explore support measures to aid her recovery.  She therefore invited the claimant to telephone her if she wished.  Ms Toland reminded the claimant that the normal sickness absence and inefficiency procedures and policies would continue to apply during her absence and that she would be referred to Occupational Health Service and Welfare Service.  Ms Toland also gave the claimant contact details for the Welfare Support Service and Carecall. 

 

33.      On 17 November 2014 the claimant telephoned Ms Toland and informed her that her sickness absence was related to her own health and that of family members.

 

34.      On 3 December 2014, in accordance with the Inefficiency Sickness Absence Procedure, the claimant was issued with a letter inviting her to a review meeting on 7 January 2015 to discuss her absence, to give her an opportunity to present any relevant information, to consider current Occupational Health Service medical opinion on her fitness or otherwise for work and to explore any reasonable adjustments that might facilitate her return to work at the earliest possible point. 

 

The claimant was again informed that she was entitled to be accompanied at the meeting by a trade union representative or a work colleague, and she was also informed that if, for exceptional reasons, she was unable to attend the meeting an alternative date could be arranged and that if she was too unwell to attend she could provide a written submission detailing any relevant information she wished to have considered in the deliberation of her case.  The claimant was further informed that she should contact Departmental HR if she had any special needs or requirements so that the necessary arrangements could be made and that if she had any further queries she could contact HR Connect.

 

35.      On 8 December 2014, a further 20 day information letter was sent to the claimant under the long-term sickness absence procedure, explaining how her absence would be managed in terms of support, referral to Occupational Health Service, consultation with her through correspondence and formal review meetings and contact with line management.  The claimant was again informed in the letter that while Written Warnings and Final Written Warnings would not be issued during a long term sickness absence, she would be advised through correspondence and review meetings of the implications of her continued absence and that should she return to work, her overall sickness absence record would be reviewed to determine if a warning was appropriate at that time.  It was again pointed out in the letter that dismissal would still be an option which could be actioned at any time if the respondent decided it could no longer sustain her absence but that she would be invited to a formal review meeting prior to any consideration of dismissal and would have a right to appeal against any dismissal decision. 

 

36.      On 11 December 2014 the claimant telephoned Ms Toland and indicated that she was planning to return to work just after Christmas.  The claimant did not attend the Occupational Health Service appointment which had been scheduled for 22 December 2014 and returned to work on 6 January 2015 the day before the review meeting was due to take place.  The claimant had already reduced her working week from five days to three days following partial retirement and her request to use her outstanding leave days to reduce her working week from three days to two days for a period upon her return was granted.

 

37.      The claimant telephoned Ms Toland on 6 January 2015 and informed her that she had returned to work.  Ms Toland informed the claimant that the review meeting which was due to take place between Ms Toland and the claimant on 7 January 2015 was no longer necessary as she had returned to work.  The claimant then asked Ms Toland if she still needed to go to Belfast for the “other meeting” with Ms Tunnah.  Ms Toland advised the claimant that she would be required to attend that meeting but that it could be held in Coleraine if the claimant was not well enough to travel to Belfast.  The “other meeting” which was being referred to was the meeting prior to consideration of dismissal which had not been arranged at that stage. 

 

38.      On 16 January 2015, Ms Tunnah requested information from the claimant’s line manager in relation to the claimant’s absences during the Final Written Warning period as that would be taken into account together with any Occupational Health and/or Welfare Support Service reports before a decision would be made on whether to commence inefficiency proceedings in relation to the claimant.  The claimant’s line manager was also informed that she should advise the claimant that her sickness absence was under review and that she had been asked to provide an input.  The claimant’s line manager did so and provided her input on 19 January 2015.   

 

39.      Ms Tunnah, having considered the above matters, decided to proceed in accordance with the inefficiency process and she wrote to the claimant on 3 February 2015 and invited her to a meeting on 10 February 2015 to consider dismissal under the Inefficiency Sickness Absence Policy.  The letter stated:-

 

“According to our records you have been absent on 4 occasions totalling 74 working days since you were issued with a Final Written Warning dated 13 June 2013.

 

I have given careful consideration to the information available and have decided to progress the matter under the Inefficiency Sickness Absence Policy.  A copy of your attendance record is enclosed for your information.

 

The Department is now considering your future employment position and possible dismissal on the grounds of inefficiency.

 

I am therefore inviting you to meet with me on 10 February 2015 at 2.00pm in Clarence Court where you will be given the opportunity to put forward any information that you feel is relevant in the management of your case.  A note-taker will be present at this meeting.

 

You are entitled, if you wish, to be accompanied at this meeting by a work colleague or a trade union representative.”

 

The claimant was further informed in the letter that if she had any special needs or requirements she should contact Ms Tunnah before the meeting so that the necessary arrangements could be made.  She was also given information as to how the Inefficiency Sickness Absence Policy could be obtained together with contact details for the Welfare Support Service and Carecall if she wished to avail of those services.  The claimant’s Employment Service Manager, Ms Henry, was informed that the letter was being issued to the claimant so that she would be there to support the claimant when she received it as she had been very upset by previous official correspondence.  Ms Henry spoke to the claimant on 4 February 2015 after she had received Ms Tunnah’s letter.  She found the claimant to be upset and she explained the purpose of Ms Tunnah’s letter to her and gave her information on Carecall and contact numbers for Welfare and Mr McKillop of NIPSA. 

 

40.      The claimant’s husband telephoned the respondent on 4 February 2015 and informed them that the claimant would not be in work that day.  The claimant e-mailed her line manager later that morning and among other things stated “I cant (sic) imagine that after 39 yrs thy (sic) consider my dismissal”.  The claimant then spoke with Ms Henry, the Employment Service Manager and informed her that she might not be able to attend the meeting on 10 February 2015 as her daughter’s baby was due.  The claimant also requested that the meeting take place in Coleraine and stated that she would not be able to agree an alternative date for the meeting until her trade union representative, Mr McKillop, got back to her. 

 

41.      Ms Henry e-mailed the above information to Ms Tunnah later that day and Ms Tunnah spoke with Mr McKillop to rearrange the meeting.  In accordance with standard procedure when inefficiency dismissal was being considered, Human Resource Department requested estimates from Civil Service Pensions Branch of the claimant’s entitlement to benefits in the event of:

 

(i)         early retirement on the ground of ill health; and

 

(ii)       dismissal on the ground of inefficiency sickness absence. 

 

The estimates which were received on 4 February 2015 indicated that the claimant would be entitled to a lump sum compensation payment of £25,605.76 upon dismissal on the ground of inefficiency sickness absence and a lump sum of £769.74 upon ill health early retirement.  Ms Tunnah’s evidence was that she may have mentioned the content of the estimates to Mr McKillop by telephone but she did not have a record of when.   

 

42.      The claimant commenced a further period of sickness absence on 10 February 2015 due to “work related stress” which was progressed in accordance with the Early Stress Intervention and Long-Term sickness absence procedures which included referring the claimant to the Occupational Health Service for advice on her fitness to work.  Advice was also sought on the claimant’s fitness to attend a consideration of dismissal meeting. 

 

43.      On 11 February 2015 Ms Tunnah sought legal advice from the Departmental Solicitor’s Office as to whether the consideration of dismissal process could continue in light of the fact that the claimant had commenced a further period of absence on 10 February 2015 which would be covered by the long term sickness absence procedure.  Ms Tunnah received legal advice on 24 March 2015 that the consideration of dismissal process should be progressed as the claimant had been absent on four occasions following the issue of the Final Written Warning, that there was no requirement to delay the consideration of dismissal process in order to deal with the case under the long term absence process, and the fact that the claimant had commenced a further period of long term absence resulting in her inability to attend the consideration of dismissal meeting should not frustrate the normal process.  Ms Tunnah was also advised that DHR should write to the claimant to explain that there were important absence related matters to be dealt with and propose a range of options i.e. that:  “DHR could deal directly with her; she can appoint someone to act on her behalf; she can make a written representation; or she may suggest some other way of moving forward”.

 

44.      Following receipt of that legal advice and the Occupational Health Service report, dated 16 March 2015, Ms Tunnah wrote to Mr McKillop, the claimant’s trade union representative and the claimant on 10 April 2015.  In her e-mail to Mr McKillop, Ms Tunnah stated:

 

            “You may recall that Heather was invited to a consideration of dismissal meeting on 10 Feb 2015 and contacted you about representation but then went off on sick absence.  On 16/3/15 OHS indicated that she would not be able to manage the inefficiency meeting due to her health problems.

 

            I intend to write to Heather to suggest that the potential ways forward in relation to the inefficiency process are for her to:

 

·         attend a rearranged consideration of dismissal meeting in your home area, should you be fit to do so;

·         provide a written submission in lieu of attending the consideration of dismissal meeting;

·         appoint someone such as a trade union representative or colleague to act on your behalf at the meeting; or

·         propose an alternative way of progressing with the consideration of dismissal meeting.

 

I will ask her to contact me for detail, in writing or by phone before 23 April 2015 to state her preference or suggest an alternative for moving things on. 

 

Just for information in case she calls you.”

 

45.      In her letter of 10 April 2015 to the claimant, Ms Tunnah stated: 

 

                        “I refer to my letter dated 3 February 2015 inviting you to meet with me on 10 February 2015 to discuss your sickness absences from work following the issue of the Final Written Warning on 13 June 2013.  As stated the purpose of this meeting was to consider dismissal in accordance with the Inefficiency Sickness Absence policy.

 

You commenced a further period of sickness absence on 10 February 2015 and the inefficiency meeting did not take place.

 

The Occupational Health Service (OHS) report dated 16 March 2015 states that, “she tells me she received a letter requesting attendance at a meeting that may lead to her dismissal.. after receipt of the letter anxiety and distress increased and she was unable to cope at work...”

 

The OHS report also advises on your fitness to attend the consideration of dismissal meeting as follows, “While Mrs Theunissen would understand the questions and process in such a meeting, the level of anxiety and distress today would suggest that she would be unable to cope with travel to Belfast or manage the meeting at present.”

 

I am conscious that the inefficiency sickness absence issue remains outstanding however I am also acutely aware that the Department may need to make a reasonable adjustment to its normal processes in order to take account of your underlying condition.  As you already know, HR can hold the meeting in an office in your home area thus easing any pressures created by travelling to a meeting in Belfast however OHS has indicated that, at 16 March, you would not be able to manage such a meeting due to anxiety/distress.”

 

Ms Tunnah then informed the claimant of her suggested options as she had set them out in the e-mail to Mr McKillop and asked the claimant to contact her before 23 April 2015 to state her preference or suggest an alternative.  Ms Tunnah also reminded the claimant that she could contact the Welfare Support Service and CareCall and provided contact details. 

 

46.      On 20 April 2015 the claimant telephoned Ms Tunnah in response to her letter of 10 April 2015.  She informed Ms Tunnah that she was hurt that inefficiency action was being considered and that she wanted to work.  She informed Ms Tunnah that she had made an application for voluntary exit under the NICS Voluntary Exit Scheme which had been launched on 2 March 2015.  Ms Tunnah informed the claimant that under the terms of the scheme her application had been put on hold pending the outcome of the Inefficiency process.  The claimant then indicated that while she wanted to be in work there was no realistic possibility of her returning to work and that she was keen for a decision to be taken on her future.  The claimant also asked Ms Tunnah about ill health retirement and Ms Tunnah went through the estimates that had been received from the Pensions Branch and pointed out that as she was already partially retired the lump sum and pension for ill health retirement were reduced.  Ms Tunnah indicated that she would send the claimant a copy of the estimates.  The claimant asked Ms Tunnah if she would also forward a copy to Mr McKillop and ask him to contact the claimant so that she could discuss her options with him as she did not wish to meet with Ms Tunnah. 

 

47.      Following that telephone conversation Ms Tunnah sent Mr McKillop an e-mail containing the above summary of her conversation with the claimant and asked him to contact the claimant. 

 

48.      Later that day i.e. 20 April 2015, Ms Tunnah wrote to the claimant in the following terms:

 

            “I refer to my letter dated 10 April 2015 and our telephone conversation this morning when you stated that you felt unable to attend the consideration of dismissal meeting with me (invitation letter dated 3 February 2015 copy enclosed).

 

                        As set out in my letter dated 10 April 2015, the remaining options are for you to:

·         make a written submission;

·         appoint someone such as a trade union representative or colleague to act on your behalf at the meeting; or

·         propose an alternative way of progressing with the consideration of dismissal meeting.

    

If you decide to provide a written submission (in lieu of attending this meeting) you should include an explanation of the background to each of your absences from 29 July 2013 to 5 January 2015 (absence record attached).  I have attached the HR Handbook Inefficiency Sickness Absence policy for reference so that you may consider what else to include in a written submission.

 

I must point out that dismissal is being considered because you were absent on 4 occasions totalling 74 working days during the period from the issue of the Final Written Warning on 13 June 2013 to 5 January 2015.  You should note therefore that the decision to dismiss or not will be taken on the basis of the circumstances prior to your current long term sickness absence which commenced on 10 February 2015.  Long term sickness absence is normally managed through a series of HR review meetings and referrals to the Occupational Health Service (OHS) with a view to assisting a return to work (with reasonable adjustments if necessary).  In cases of long term absence, dismissal is not normally considered before an absence has reached 7-8 months however the process can be expedited in certain circumstances including when the employee expressly requests this and confirms that he/she is fully aware of the potential implications.

 

During our conversation, you indicated that you may apply for Ill Health Retirement (HR) and I explained that a request and supporting medical evidence should be sent to DEL HR who would then forward these documents to OHS for consideration.  I have attached a copy of the Early Retirement on Medical Grounds section of the HR Handbook for your information.

 

I have also attached a copy of the IHR and inefficiency dismissal estimates for your consideration and as requested I have emailed a copy of these to Thomas McKillop, NIPSA, and asked him to contact you. 

 

Finally, in line with the terms of the Voluntary Exit Scheme, as you are being considered for inefficiency dismissal your application will be put on hold until the inefficiency sickness absence decision has been taken.

 

Please contact me at the above email address/postal address or by phone before 1^st May 2015 to provide a written submission in lieu of attending the meeting, to nominate a representative to act on your behalf or suggest an alternative means of carrying out the consideration of dismissal process which I will consider.”

 

            The letter from Pensions Branch which was on the reverse side of the compensation payment estimate stated:

 

                        “In response to your request dated 20 January 2015 for an estimate of pension benefits for Mrs Theunissen, I enclose an Estimate Statement showing the benefits calculated for the circumstances described.

 

                        If appropriate, would you please forward this Statement to Mrs Theunissen and advise her that this estimate is based on her current pensionable earnings and reckonable service projected to the date shown on the statement.  If either of these change - if for example, in the interim period, she receives an increase in her pensionable earnings, or has unpaid absences - the estimate will no longer be valid.  She is, therefore, strongly advised not to enter into any financial commitments on the strength of it.”

 

49.      On 22 April 2015 the claimant sent Ms Tunnah an e-mail informing her that she had decided to e-mail her in lieu of attending the consideration of dismissal meeting.  She stated that:

 

                        “At this moment in time I cannot see myself returning to work.  My anxiety state at the moment has been stated as Acute on my medical lines and also by the OHS doctor.  I tried several times last year and this year to return to work but the Department’s sick policies and letters upset me even more and in the end i have just given up.  I also believe that any adjustments offered by the Department would not help current medical condition.

 

                        Therefore, I request that you go ahead with Inefficiency sickness policy as soon as possible please.  I need to have closure on this procedure and get on with my life.  ...”

 

50.      On 24 April 2015 Ms Tunnah replied to the claimant explaining that her letter of 20 April and the claimant’s e-mail of 22 April 2015 must have crossed in the post.  She pointed out that, as stated in her letter of 20 April 2015, the inefficiency decision would be based on the claimant’s absences prior to her current absence which began on 10 February 2015.  She provided the claimant with a copy of the background information which had been provided by her line management on 19 January 2015 and gave the claimant the opportunity to provide any background information she wished to be taken into consideration. 

 

51.      Later that day the claimant informed Ms Tunnah, by e-mail, that she had nothing to add to the information provided by her management apart from the fact that “my stress/anxiety have got to breaking point”.  She also stated “I just want this all over a (sic) done with.  I have to try an (sic) accept that i can no longer work and have done my years of service.  Time for me to try to get back to normal and good health.”

 

52.      On 27 April 2015 Ms Tunnah e-mailed the claimant and thanked her for her reply and informed her that she would make her decision on the basis of the available information. 

 

53.      On 5 May 2015, Mr McKillop e-mailed the claimant as follows:

 

                        “I eventually got sitting down with Belinda and got talking through your situation and we appear to be singing off the same hymn sheet.

 

                        I checked your estimates and can confirm that if you take the option to let the department dismiss you, you would attract a compensation payment of approx. £25,000 and then would get additional pension payments of £250 per annum due at normal pension age in 2018.  You would stay on and continue to receive any existing payments you get in the meantime.

                        Failing this, you could apply for IHR and get pension immediately upon approval, but the additional paid pension is tiny and you get a lump sum of £770.

 

                        This would therefore appear to be a “no-brainer”!

 

                        I spoke to Belinda and chatted about how to expedite this, as it is clearly in your best interests to move things on and will help you financially if this can be settled sooner rather than later.

 

                        If you are agreeable, what I have suggested to Belinda is that we ask for your 2 absence hearings to be treated as 1 period, that we do a written submission for both and that we basically state that there is no prospect of a return to work in your circumstances and that the department therefore considers terminating your employment under the inefficiency sickness absence procedures.  I also suggest that we ask that any consideration or notice period be waived in the interests of expedience.  This will mean you getting closure on the issue sooner and that you will get access to the lump sum settlement sooner too.

 

                        If you are agreeable with this, and by all means talk this over with your husband and make sure that is what you want, I will draft a letter for you to send or email to DHR to cover and summarise what has been said above.

 

                        Let me know what you think.”

 

            On 6 May 2015 the claimant replied to Mr McKillop as follows:

 

“Thanks Thomas, yes, go ahead with those proposals.  I have talked it over with my husband and he agrees I need closure and move on.  Thank you for your help.”

 

The claimant had sent these e-mails to the tribunal on 3 February 2016 (see paragraph 4 above).

 

54.      Although Ms Tunnah did not have a record of the meeting referred to by Mr McKillop in his e-mail of 5 May 2015 to the claimant (see paragraph 53 above), she did recall having had a meeting with him in Belfast to discuss the claimant’s absence.  As Ms Tunnah had already sent Mr McKillop a copy of the estimates on 20 April 2015 (see paragraph 48 above) the tribunal is satisfied that it is more likely than not that the matters referred to in Mr McKillop’s e-mail of 5 May 2015 (see paragraph 53 above) to the claimant were discussed between him and Ms Tunnah at their meeting. 

 

55.      On 13 May 2015, Mr McKillop e-mailed Ms Tunnah as follows:

 

                        “I have been asked to formally write on behalf of Heather to try and bring events to a close with regards to her current and ongoing period of absence and her previous period which links in.  Heather has been copied into this correspondence.

 

                        Heather has consulted with her family and doctor and does not consider that she will ever be in a position to return to work and there is no genuine prospect of this position changing.  Therefore, Heather would like to expedite the inefficiency sickness absence procedures to allow for her dismissal on these grounds. 

 

                        She is content to consider both absence periods as one and to waive any qualifying period or notice period required which will protract the process.  Heather does not feel she will be able to engage any further with the absence management aspect of the process and is content that the decision be taken based on any previous written submissions and the detail contained within this e-mail.  Heather has considered the financial implications and the estimates contained within her pensions documents and is happy to proceed with the Department taking the decision to dismiss on these grounds.

 

                        I would be grateful if you could advise as to whether any further information is needed to allow the Department to move to dismissal on grounds of inefficiency due to sickness absence and for your support in assisting Heather in making this difficult but final, decision.”

 

56.      In the absence of a meeting with the claimant, Ms Tunnah considered:

 

(i)        the fact that the claimant had received a Written Warning on 20 October 2012, which was valid for two years, having been absent on four occasions totalling 72 working days.  Those absences had been due to abdominal pain, flu, non-work related stress and backache pain;

 

(ii)       the fact that the claimant had received a Final Written Warning on 13 June 2013, which was valid for two years, having been absent on one occasion for 29 days due to a cough/sinusitis while the Written Warning was in place;

 

(iii)      the claimant’s further absences on four occasions totalling 74 working days while the Final Written Warning was in place together with the nature of and reasons for them;

 

(iv)      the background information provided by the claimant’s managers in relation to the absences while the Final Written Warning was in place;

 

(v)       stress intervention records relating to the claimant;

 

(vi)      welfare reports relating to the claimant;

 

(vii)     occupational health reports relating to the claimant;

 

(viii)    information provided by the claimant and her trade union representative;

 

(ix)      correspondence to and from the claimant and Human Resources;

 

(x)       records of telephone calls between the claimant, Human Resources and her trade union representative;

 

(xi)      the claimant’s length of service; and

 

(xii)     the effect of the claimant’s absence on colleagues and efficiency.

 

57.      Although Ms Tunnah concluded from the Occupational Health Report, dated 16 March 2015, that the claimant had not been assessed by Occupational Health as meeting the criteria for ill health retirement, Ms Tunnah took into account that she had advised the claimant of the process for applying for ill health retirement and the estimated lump sum and pension payable to her in those circumstances (Ms Tunnah had explained the process for applying for ill health retirement during a telephone conversation with the claimant on 20 April 2015 and in a letter to her on that same date - see paragraphs 46 and 48 above).

 

58.      Ms Tunnah also considered whether the Disability Discrimination Act applied in light of the claimant’s medical conditions.  Although Ms Tunnah was unclear from the Occupational Health Report whether the claimant’s medical conditions came within the Disability Discrimination Act definition, Ms Tunnah considered, having regard to the background information from the claimant’s managers, that her conditions appeared to have a substantial impact on her day to day activities.  Ms Tunnah therefore considered if there were any adjustments that could reasonably be put in place to enable the claimant to return to work.  In doing so Ms Tunnah took into account the fact that:

 

(a)       the occupational health service report dated 16 March 2015 indicated that there were no adjustments at that time that would help facilitate the claimant’s rehabilitation or an early return to work;

 

(b)       the claimant had indicated during her telephone conversation with Ms Tunnah, on 20 April 2015, that there was no realistic possibility of her returning to work (see paragraph 46 above);

 

(c)       the claimant had stated in her e-mail of 22 April 2015 to Ms Tunnah that at that moment in time she could not see herself returning to work and that she believed that any adjustments offered by the respondent would not help her current medical condition (see paragraph 49 above);

 

(d)       the claimant had stated in her e-mail of 24 April 2015 to Ms Tunnah that she had to try to accept that she could no longer work (see paragraph 51 above);

 

(e)       Mr McKillop, the claimant’s trade union representative had stated in an e-mail to Ms Tunnah on 13 May 2015, that the claimant had consulted with her family and doctor and did not consider that she would ever be in a position to return to work and that there was no genuine prospect of that position changing (see paragraph 55 above).

 

59.      Having considered all those matters Ms Tunnah concluded that the level of the claimant’s attendance following the issue of the Final Written Warning on 13 June 2013 which was valid until 12 June 2015 had not shown a significant or sustained improvement and could not be sustained, and that there were no reasonable adjustments that could be made to facilitate the claimant’s return to work and she therefore decided to dismiss the claimant. 

 

60.      By letter dated 19 May 2015, Ms Tunnah notified the claimant of her dismissal on the grounds of inefficiency as a result of her absence from work due to sickness following the issue of the Final Written Warning on 13 June 2013 and the reasons for it.  Ms Tunnah also notified the claimant of her right to 13 weeks’ notice, her right to an internal appeal within 10 days and, if unsuccessful, her right to a further appeal to the Civil Service Appeal Board and her right to be accompanied during the appeals process by a colleague who may be a trade union representative.  In relation to the compensation payment Ms Tunnah stated:

 

                        “In cases of dismissal due to unsatisfactory attendance a compensation award may be made where it is accepted that the inability to attend work is beyond the control of the individual, but where medical retirement is considered in appropriate.  I can confirm that you qualify for the full amount of compensation payment.”

 

61.      On 20 May 2015 the claimant made a request for her leaving date to be brought forward from 18 August 2015 to 2 July 2015.  On 21 May 2015, Mr McKillop informed Ms Tunnah by e-mail that the claimant was willing to waive any notice periods in line with her dismissal on grounds of inefficiency due to illness and would like to bring her leaving date forward to 2 July 2015 if that was possible.

 

62.      On 26 May 2015, Ms Tunnah informed Mr McKillop by e-mail that it was possible to do so but that the claimant “should satisfy herself that if (sic) is in her best interests to bring forward the leaving date as doing so can have implications” which she outlined.  On that same day the claimant e-mailed Ms Tunnah to confirm that she wished to leave on 2 July and her leaving date was brought forward accordingly.

 

63.      On 7 July 2015, the claimant was notified by Pensions Branch that the amount of the lump sum compensation payment she would actually receive was £1,577.97.  This was significantly less than the estimate of £25,605.76 Pensions Branch had sent Ms Tunnah on 4 February 2015 and which Ms Tunnah had copied to the claimant and Mr McKillop on 20 April 2015. 

 

64.      On 8 July 2015 the claimant telephoned the Civil Service Pensions Branch and was informed that the actual compensation figure of £1,577.07 was based on her period of re-employed service since her partial retirement in June 2013 (following which she had received a lump sum of £46,819.56) whereas the estimated compensation figure of £25,605.76 had been based on her full service of almost 40 years. 

 

65.      Understandably the claimant was devastated by this and she contacted Ms Tunnah on 8 July 2015 and informed her that she was “very anxious and ill due to all this upset” and that her home was at risk because she had made plans to pay off some of her mortgage with the compensation payment.

 

66.      Ms Tunnah replied to the claimant by e-mail on 8 July 2015, and informed her that she was trying to establish if there were any options open to her and would keep her updated but that in the meantime she has spoken with Pensions Branch and they had confirmed that there was an internal dispute process for pension complaints.  The claimant replied that same day indicating that she was not in any fit state to contact the Pensions Branch or go through all the process.  In addition she stated “I was given the wrong information which has lead to all this.  Made a contract with you and agreed my exit from Nics.  Hope fully you can sort it out asap as the wrong details have made me very ill”. 

 

67.      On 9 July 2015, Ms Tunnah replied as follows:

 

            “I appreciate that you are experiencing ongoing health problems and note your comment below (that you feel unable to contact Civil Service Pensions Branch (CSPB) at this stage).  I know that, during the consideration of dismissal process, you were represented by Thomas McKillop, NISPA, and I would suggest that you consider contacting him to discuss the support options available to you in going forward.

 

            DEL was not involved in the calculation of the compensation estimates and this was the sole responsibility of CSPB.  As previously suggested, the mechanism for raising this matter is through CSPB internal dispute, details of which are available on the CSB website (link in email below for ease).  The dismissal decision did not take any account of your entitlement to compensation and therefore would not have been influenced by the compensation payment, irrespective of the amount.

 

                        In your email below you refer to agreeing to your exit from the NICS.  I must point out that the decision to dismiss you was taken by DEL, in line with the Inefficiency Sickness Absence policy, and although you requested to waive the right to some of the notice period, and DEL agreed to this, the actual dismissal decision was made by DEL HR.

 

                        I accept that this must be a very difficult time for you and I hope that you get the support you need to allow you to deal with this matter.”

 

68.      On 9 July 2015 Mr John Dallat MLA wrote to Ms Tunnah on behalf of the claimant.  Ms Tunnah replied on 17 July 2015.  Mr Dallat responded to that reply and Ms Tunnah wrote further to Mr Dallat on 29 July 2015.

 

69.      On 10 August 2015 the claimant notified Pensions Branch that she wished to accept the offer for £1,577.97 lump sum compensation “on a without prejudice basis”. 

 

70.      On 17 September 2015, the claimant wrote to Ms Tunnah and informed her that she wished to lodge an out of time appeal against the decision taken to dismiss her on the grounds of inefficiency due to sickness absence with effect from 2 July 2015.  The claimant stated that she had agreed to the department taking that decision based on an estimate of compensation payable by NICSPS which had subsequently proven to be inaccurate and had she been in possession of that information at that the time, she would have appealed at that stage against the decision to dismiss.  She also asked for any monies owed to herself, due to her waiving her notice period, be paid pending the consideration of her out of time appeal.  An appeal hearing was granted outside the 10 day limit and was arranged for 16 October 2015.  The claimant was informed that she would be given the opportunity to put forward any information she felt was relevant to her appeal and that if she wished she could be accompanied by a work colleague or trade union representative.

 

71.      The appeal proceeded on 16 October 2015 and was conducted by Mrs Ingram, a Grade 5 Director in the Department for Employment and Learning who had not been previously involved in the claimant’s case.  The claimant and Mr McKillop, her trade union representative, attended. 

      

72.      At the outset of the appeal meeting, Mrs Ingram explained to the claimant and Mr McKillop that:

 

(i)        the purpose of the appeal meeting was not to cast doubt on the genuineness of the claimant’s illness;

 

(ii)       the purpose of the appeal meeting was to review the claimant’s attendance and the evidence and to give her an opportunity to provide any additional information which may help Mrs Ingram in reaching her decision; and

 

(iii)      her role was to review the evidence relied upon by Ms Tunnah in making the decision to dismiss the claimant, to decide whether Ms Tunnah had followed their procedures and whether she had acted fairly and reasonably.

 

73.      Mrs Ingram then went through the history of the claimant’s absences due to ill health which had led to her dismissal and gave her the opportunity to give any further information she wished about her absences.  In response, the claimant explained that:

 

(i)        the causes of her absences were related to the medical conditions of family members;

 

(ii)       when she returned to work on 6 January 2015 she had arranged a reduction in her working week with management to alleviate the pressure she was under in light of the medical conditions of family members;

 

(iii)      Ms Tunnah’s e-mail of 3 February 2015, informing her that she was being considered for dismissal on the grounds of inefficiency arrived without prior notice or warning and caused her to become stressed and she had to go on sick leave again;

 

(iv)      if the estimate had contained the correct figures she may have agreed to attend a dismissal meeting and she may have pursued ill-health retirement, but because of Ms Tunnah’s advice she went ahead with the dismissal as the pension estimate indicated that she would receive a compensation payment of £25,000;

 

(vi)      she had considered the voluntary exit scheme;

 

(vii)     she had waived her notice period to access the compensation payment sooner as she had an agreement with her mortgage lender in anticipation of the money being received;

 

(vii)     she then discovered from Pensions Branch that the fact that she was partially retired had not been taken into account when the compensation payment had been calculated and that in light of her partial retirement the correct amount to which she was entitled was £1,500. 

 

74.       Mr McKillop stated that:

 

(i)        he and Ms Tunnah had both contacted Pensions Branch and had been informed that a number of calculations had been wrong;

 

(ii)       it was understood that the respondent had acted in good faith on the information provided by Pensions Branch;

 

(iii)      the claimant had put in a case against Pensions Branch and had been in contact with the Pensions Ombudsman;

 

(iv)      the claimant’s dismissal had been unfair because the standard statutory dismissal and disciplinary procedure had not been followed in that no dismissal meeting had taken place; and

 

(v)       the claimant would have considered the option of ill health retirement or applied for appeal if she had known the proper figures beforehand. 

 

            Mr McKillop asked if the claimant could be reinstated “on paper” and be considered under the Voluntary Exit Scheme which she had applied for in April/May 2015. 

 

75.      Mrs Ingram informed the claimant and Mr McKillop that she would look at everything in detail before making a decision.  Mrs Ingram asked the claimant if she was fit to return to work and the claimant replied that she was not.

 

76.      Following the meeting, Mrs Ingram:

 

(i)        considered the matters that had been raised by the claimant and Mr McKillop;

 

(ii)       considered all the documents she had been provided with including Ms Tunnah’s decision rationale;

 

(iii)      clarified the sequence of events with Ms Tunnah; and

 

(iv)      investigated whether the claimant would have been offered voluntary exit if she had not been dismissed or if her appeal against dismissal was upheld.

 

77.       Having done so Mrs Ingram concluded that:

 

(i)        while she appreciated the effect the incorrect estimate of the compensation payment had on the claimant, her role was to consider the dismissal process itself and whether DEL HR had followed procedures and had come to a fair and reasonable decision and that the calculation of the compensation payment was not part of that process and was outside the remit of appeal.  In addition while she recognised that the incorrect compensation estimate was likely to have influenced the claimant’s attitude to the inefficiency dismissal process, the claimant’s agreement to the dismissal decision was not necessary as that was a decision Ms Tunnah had to make on the basis of the absence information;

 

(ii)       the claimant’s request for any notice pay which she had waived to be paid to her, was outside the remit of the dismissal appeal;

 

(iii)      the claimant would not have been offered voluntary exit if she had successfully contested her dismissal or if her appeal was successful because of the “value for money” criterion;

 

(iv)      she could not accept that the claimant had been unaware that dismissal was an option on her return to work on 6 January 2015 in light of:

 

(a)       Ms Toland’s note of her telephone conversation with the claimant on her return to work on 6 January 2015 which indicated that the claimant had asked Ms Toland if she would have to attend the “other meeting” which was the consideration of dismissal meeting and that she was told she would have to;

 

(b)       the Final Written Warning letter dated 13 June 2013 which informed the claimant that:

 

“failure to demonstrate an immediate and sustained improvement in your attendance during the two year warning period, may lead to further inefficiency action which could ultimately lead to your dismissal”;

 

(c)       the “no further action” letters which were issued to the claimant following absences in July 2013 and January 2014 which informed her that her: 

 

“attendance will continue to be monitored closely and any further absences may result in inefficiency action being taken”.

 

(d)       the two 20 day information letters which were issued to the claimant during 2014 and most recently in December 2014 and which informed her that:

 

                                   “Dismissal will remain an option and may be actioned at any time should the Department decide it can no longer sustain your absence”;

 

(v)       she could not accept Mr McKillop’s contention that the claimant’s dismissal was unfair because a dismissal meeting had not taken place.  That was because she was satisfied that the statutory requirement was for the employer to offer to meet the claimant but that there was no absolute procedural requirement for a meeting to actually take place.  She was also satisfied, having considered the documentation, that the claimant had been invited to a meeting in February 2015 but had decided not to proceed with the meeting and had then been offered other methods of providing input into the process.  Although the claimant had indicated that she might have agreed to attend a consideration of dismissal meeting if she had been given the correct figure initially, Mrs Ingram noted that that was inconsistent with her GP’s certification of unfitness for work;

 

(vi)      in relation to the claimant’s contention that she would have considered the option of ill health retirement or that she would have applied for appeal if she had known the proper pension figures beforehand, it had been open to the claimant to appeal at a much earlier stage after she had been made aware of the correct compensation figure (on 7 July 2015) and to press for ill health retirement to be considered but that she did not do so.  In addition, Mrs Ingram was satisfied that there was no guarantee that ill health retirement, which is subject to a separate process, would have been recommended and that there would have been no material benefits to the claimant from a decision to proceed with ill health retirement;

 

(vii)     Ms Tunnah’s decision to dismiss the claimant which had been based on her level of attendance and which had not shown a significant or sustained improvement following the issue of the Final Written Warning and could not therefore be sustained was fair and reasonable.  In addition, Mrs Ingram was satisfied that as far as she could ascertain, the claimant’s situation had been handled consistently with other similar situations and that it had been handled with the appropriate level of sensitivity and in good faith. 

 

78.      Mrs Ingram therefore decided that Ms Tunnah’s decision to dismiss the claimant should be upheld.  The claimant was notified of Mrs Ingram’s decision and reasons by letter dated 11 December 2015.       

              




 

Relevant Statutory Provisions

 

(a)       Unfair Dismissal

 

79.      The relevant statutory provisions in relation to unfair dismissal are set out in the Employment Rights (Northern Ireland) 1996 as follows:-

 

126.-(1) An employee has the right not to be unfairly dismissed by his employer.

 

(2) Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140 to 144).

 

127.-(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) . . , only if)-

 

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

 

(b)       ...

 

(c)        ...

 

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if-

 

(a)       the employer gives notice to the employee to terminate his contract of employment, and

 

(b)       at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire;

 

and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given.

 

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,...

 

(ba)    is retirement of the employee ...

 

(c)       is that the employee was redundant, or...

 

(d)       is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

 

(3) In paragraph (2)(a)-

 

(a)       “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality,

 

(b)       ....

 

(4) In any other case where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

 

(a)       depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

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

 

130A.-(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

 

(a)       one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

 

(b)       the procedure has not been completed, and

 

(c)       the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

 

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

 

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.

 

80.      Schedule 1 to the Employment (Northern Ireland) Order 2003 sets out the standard statutory dismissal and disciplinary procedure as follows:

 

Step 1: statement of grounds for action and invitation to meeting

 

1.-(1)The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 

(2)       The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

 

Step 2: meeting

 

2.-(1)The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

           

(2)       The meeting must not take place unless-

 

(a)       the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

 

(b)       the employee has had a reasonable opportunity to consider his response to that information.

 

(3)       The employee must take all reasonable steps to attend the meeting.

 

(4)       After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

 

Step 3: appeal

 

3.-(1)If the employee does wish to appeal, he must inform the employer.

 

(2)       If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

 

(3)       The employee must take all reasonable steps to attend the meeting.

 

(4)       The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

 

(5)       After the appeal meeting, the employer must inform the employee of his final decision.

 

(b)       Breach of Contract

 

81.      Rule 1 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides:

 

-(1) ...

(2) In this Order-

“contract claim” means a claim in respect of which proceedings may be brought before an industrial tribunal by virtue of article 3 or 4;

 

 

Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides:

 

“Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if-

 

(a)     the claim is one to which Article 57(2) of the No 2 Order applies and in respect of which a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine and action;

 

(b)     the claim is not one to which article 5 applies; and

 

(c)     the claim arises or is outstanding on the termination of the employee’s employment.”

 

Article 57(2) of the Industrial Relations (No.2) (Northern Ireland) Order 1976 provides:

 

            “Subject to paragraph (3), this Article applies to any of the following claims, that is to say -

 

(a)       a claim for damages for breach of a contract of employment or any contract connected with employment;

 

(b)       a claim for a sum due under such a contract;

 

(c)       a claim for the recovery of a sum in pursuance of any statutory provision relating to the terms or performance of such a contract;

 

            being in each case a claim such that a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.”

  




 

The tribunal’s decision and reasons in the claimant’s complaint of unfair dismissal

 

Dismissal

 

82.      Unless dismissal has been conceded by the employer, the onus is on the employee, in this case the claimant, to prove on the balance of probabilities that she was dismissed by her employer.  If she cannot do so, her complaint of unfair dismissal cannot succeed. 

 

83.      Although the claimant indicated at paragraph 7.1 of her claim form that she was making a complaint of unfair dismissal as well as breach of contract against the respondent and although the respondent conceded that it had dismissed the claimant in its response form, it was unclear from:

 

(i)        paragraph 7.4 of the claimant’s claim form namely:

 

“...  I was advised and it was agreed by Belind (sic) Tunnah DEL HR that if I left the NICS after 40 years under the grounds of inefficiency that I would get compensation of 25,000 .. I agreed and my contract was terminated.  Now they saying (sic) I’m not entitled to the money, as Pensions BR made an error.  I gave up my job on this ladies advice ...  Because of her advice I have no longer a job, and I have not been able to apply for the early exit scheme from NICS ...”;

 

(ii)       the claimant’s assertions in her e-mail of 8 July 2015 to Ms Tunnah namely:

 

                        “Made a contract with you and agreed my exit from Nics”;

 

(iii)      the claimant’s assertions in her letter of appeal dated 17 September 2015 namely:

 

“I wish to lodge an out-of-time appeal against the decision taken to dismiss me on grounds of inefficiency due to sickness ...”

 

I had agreed to the department taking that decision based on an estimate of compensation payable by NICSPS which has subsequently proven to be inaccurate ...”;

 

(iv)      the claimant’s assertions in her e-mail of 28 October 2015 to the tribunal namely:

 

                                    “She suggested and Advised that i should leave under the grounds of dismissal as it would be the way forward for me and i would receive Compensation of 25,000.  Belinda also asked that i would e-mail her my decision to leave after talking it over with my husband.  I e-mailed the details etc and she stated that she would make a decision based on this.  The outcome would be that i would leave and get my payment. 

 

                                    During this time i also spoke with my union rep Thomas McKillop NIPSA.  Thomas was also in regular contact with Belinda and as you will see from the attached e-mail that together Thomas and Belinda AGREED and both confirmed to me in writing that i should leave and also that i would receive a lump sum of 25,000. 

 

                                    At one stage when i told Belinda i was upset at having to chose to be dismissed to get the bigger amount of compensation ...”;

 

(v)       the claimant’s assertions in her e-mail of 3 February 2016 to the tribunal namely:

 

                                               “....  I was made to believe that a Contract had been set up ...

                                                I was to agree to take the Compensation payment in lieu of being dismissed as advised by Belinda Tunnah”; 

 

(vi)      the claimant’s assertion at paragraph 1 of her witness statement namely:

 

                                    “I was employed by NICS for 40 years until 2^nd July, 2015, when I was wrongfully dismissed on the grounds of inefficiency.”

 

(vii)     the claimant’s assertions at paragraph 2 of her witness statement namely:-

 

                                    “During the period from Feb 2015 to July 2015 I received telephone calls and e-mails from Belinda Tunnah.  We talked about my medical condition and where I saw myself in the future regarding my work.  It was then on April 20^th by phone that Belinda suggested that I could volunteer for my dismissal as I would receive a lump sum from Pensions Branch totally (sic) 25,000 Pounds.

 

                                    ....

 

                                    When I spoke to my union representative, Mr. T. McKillop regarding my decision to leave and get the lump sum, I asked him to contact Belinda and make sure that this information was all correct.”;

 

(viii)    the claimant’s assertions at page 3 of her witness statement namely:

 

                                    “On 2^nd July, 2015, my contract was terminated. 

 

                                    ...

 

                                    I appealed the department decision to dismiss me ... but I want the Court to understand is that I chose and I made the decision to leave as I was offered the money ...  I do know I was unfairly dismissed ....”;

 

whether the claimant was actually claiming that:

 

(a)       she had been dismissed by the respondent having either agreed to be dismissed or having volunteered to be dismissed in return for a compensation payment of £25,000; or

 

(b)       she had entered into a contract with the respondent whereby she was to receive £25,000 in return for leaving and was not dismissed.     

 

84.      Mr Sands submitted that the respondent did dismiss the claimant and the fact that the claimant believes that she acquiesced in the dismissal is neither here nor there. 

 

85.      The tribunal is satisfied that in light of the claimant’s four absences totalling 74 days while the Final Written Warning for previous absences was still in force, Ms Tunnah invited the claimant to a meeting on 10 February 2015 to consider the claimant’s “future employment position and possible dismissal on the grounds of inefficiency”.  Ms Tunnah made it clear to the claimant in writing on 10 April and 20 April 2015, that the respondent was still considering whether to dismiss the claimant in light of those four absences during the period of the Final Written Warning.  Ms Tunnah made it clear to the claimant that if she was unable to attend a meeting to consider dismissal, she could make a written submission, appoint someone such as the trade union representative or colleague to act on her behalf at the meeting or she could propose an alternative way of progressing with the consideration of the dismissal meeting.  On 27 April 2015, after the claimant had made it clear that she would not be attending a dismissal meeting and that she had nothing to add to the information that had been provided by her management, apart from the fact that “my stress/anxiety have got to breaking point”, “I just want this all over a (sic) done with.  I have to try an (sic) accept that i can no longer work and I have done my years of service.  Time for me to try to get back to normal and good health”, Ms Tunnah informed the claimant that she would make a decision whether or not to dismiss her on the available information.  The tribunal is satisfied from Ms Tunnah’s responses to the President’s questions that she did not suggest to the claimant that she had to or that she should volunteer for dismissal on the ground of inefficiency in return for the compensation payment.  On the contrary the tribunal is satisfied that Ms Tunnah considered the matters set out at paragraph 56 above and having done so decided to dismiss the claimant and notified the claimant accordingly by letter dated 19 May 2015.  The tribunal is therefore satisfied that the claimant was dismissed by the respondent.   

 

Automatic Unfair Dismissal - Article 130A

 

86.      The claimant’s dismissal would be automatically unfair if:

 

(a)       the respondent failed to complete the three step statutory procedure set out at Schedule 1 to the Employment (Northern Ireland) Order 2003 which involved:

 

(1)       providing the claimant with a statement of the grounds of action and inviting her to a meeting to discuss the matter;

 

(2)       a meeting between the respondent and the claimant at which the claimant was entitled to be accompanied and to respond; and

 

                                    (3)       a right of appeal; and

 

(b)       the non completion of the procedure was wholly or mainly attributable to the respondent.

 

87.      Neither the claimant nor Mr McKillop contended at any stage that steps 1 and 3 of the statutory procedure had not been followed and the tribunal is satisfied that both steps were followed by the respondent.  That is because the respondent sent the claimant a letter on 3 February 2015 inviting her to a meeting on 10 February 2015 and set out the circumstances which had led to the meeting and held an appeal meeting.  The tribunal is satisfied that although a dismissal meeting did not take place, as set out at step 2 of the statutory procedure, that was neither wholly or mainly attributable to any failure on the part of the employer and did not therefore render the claimant’s dismissal automatically unfair.  That is because the tribunal is satisfied that the proposed meeting did not take place as the claimant had initially indicated that she would be unable to attend on that date because her daughter’s baby was due and that she subsequently indicated that she would be unable to attend because of her health problems.  It was also clear from the Occupational Health Report dated 16 March 2015 that the claimant would not be able to attend due to her health problems.  The tribunal is satisfied that the respondent proposed adjustments to the process to enable the claimant to participate.  Those adjustments were that the claimant could make a written submission, that she could appoint someone such as a trade union representative or colleague to act on her behalf at the meeting or that she could propose an alternative way of progressing with the consideration of the dismissal meeting.  The claimant then informed the respondent by e-mail that she had decided to e-mail some information in lieu of attending the consideration of dismissal meeting.   

 

Ordinary unfair dismissal - Article 130

 

Reason for dismissal

 

88.      Where the dismissal is not automatically unfair, the burden of proof is on the employer under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 to show the reason for the dismissal and that it was a reason falling within Article 130(2).  If the employer cannot do so, the dismissal will be “ordinarily” unfair. 

 

89.      Mr Sands submitted and the tribunal is satisfied that the respondent has established the reason for dismissing the claimant and that it was due to the claimant’s level of attendance arising from ill health following the issue of a final warning and that for the purposes of Article 130(2) it related to capability which is a potentially fair reason for dismissal. 

 

Fairness of dismissal

 

90.      If, as in this case the respondent has shown the reason for dismissal and that it is a potentially fair reason i.e. incapability, the Northern Ireland Court of Appeal made it clear in Rogan -v- South Eastern Health & Social Care Trust (2009) NICA 47 that Article 130(4) then requires the tribunal to apply its judgment to whether the employer acted reasonably in treating the claimant’s capability (conduct in the Rogan case) as a sufficient reason for dismissal and approved the guidance of Browne -v- Wilkinson J in Iceland Frozen Foods -v- Jones (1983) ICR 17 that:

 

(1)     the starting point should always be the words of section 57(3) (the equivalent of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996;

(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 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 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 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’.

91.      In Lynock -v- Serial Packaging Ltd (1988) IRLR510 the Employment Appeal Tribunal held that the approach of an employer when determining whether to dismiss an employee with a poor record of intermittent absences is “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 on 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, includes 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.” 

 

92.      The Labour Relations Agency Code of Practice on Dismissal and Grievance Procedures which industrial tribunals are required to take into account when considering relevant cases e.g. unfair dismissal, provides practical guidance to employers, employees and their representatives.  In relation to dealing with absence from work paragraphs 40-43 state:

 

40.      When dealing with absence from work it is important to determine the reasons why the employee has not been at work.  If there is no acceptable reason, the matter should be treated as a conduct issue and dealt with as a disciplinary matter.

 

41.      If the absence is due to genuine illness, the issue becomes one of capability and the employer should take a sympathetic and considerate approach. When thinking about how to handle these cases, it is helpful to consider:

 

•               how soon the employee’s health and attendance will improve;

•               whether alternative work is available;

•               the effect of the absence on the organisation;

•               how similar situations in the organisation have been handled in

•               the past;

•              whether the illness is a result of disability in which case the provisions of the Disability Discrimination Act 1995 will apply;

•              any suggestions for helping an employee get back to work made by the employee’s general practitioner in a Statement of Fitness for Work.

 

42.      The impact of absences will nearly always be greater on small organisations, and they may be entitled to act at an earlier stage than large organisations.

 

43.      In cases of extended sick leave other issues may need to be considered such as whether the individual is disabled and if they have any rights to contractual payments during their absence. These can be complicated and specialist advice may be needed.

 

93.       Appeals are dealt with at paragraphs 47-52.

 

            Paragraph 47 states:

 

                        “Employees who have action taken against them on conduct or capability grounds should be given the opportunity to appeal.  It is useful to set a time limit for an employee to ask for an appeal - five working days is usually enough.”

 

            Paragraph 50 states:

 

                        “A more senior manager not previously involved with the case should hear the appeal ....”

 

94.      It appears from the claimant’s claim form, e-mails and witness statement that she contends that her dismissal was unfair for the following reasons:

 

(i)        she had been no prior warning that she was being considered for dismissal after she had returned to work on 6 January 2015 and believed she was doing well and was getting back to normal until she unexpectedly received Ms Tunnah’s letter of 3 February 2015 which made her “feel I had to go sick again”;

 

(ii)       the respondent dismisses more of its employees under the ‘sick policy’ than other Departments;

 

(iii)      Pensions Branch had failed to ensure that the estimate provided had been calculated correctly and the respondent had failed to pay the estimated incorrect amount;

 

(iv)      the claimant may have been able to leave under the Early Exit Scheme if she had been given the correct figure initially; and

 

(v)       Mrs Ingram who conducted the appeal hearing had never met the claimant before and “only had previous notes of the case etc”.

 

95.       Mr Sands submitted that:

 

(i)        the respondent’s decision to dismiss the claimant was based on objective facts, advice from the Occupational Health Service and Welfare and the claimant’s dismissal on the ground of incapability was reasonable and procedurally fair.  That is because the claimant was informed and notified throughout the whole absence process throughout the last number of years of her lengthy service, and through no fault of her own, that her absence had become an issue.  This was highlighted to her on a regular basis and every effort was made to try to assist her where possible but it was not possible to get her back in to work and in those circumstances the Employment Rights (Northern Ireland) Order 1996 recognises that incapability can be a fair ground of dismissal.

 

(ii)       the claimant’s dismissal was procedurally fair for the following reasons:-

 

(a)       the claimant was invited to a meeting and although she chose not to attend she was given a range of alternative options namely representation by a trade union official or written representations as it is not for the Department to compel her to attend.  Even if there was any unfairness by proceeding to dismiss the claimant without a meeting, which is not accepted, it was corrected at the appeal meeting which took place after it had come to light that the compensation payment estimate had been incorrect.  She attended the appeal meeting with her trade union representative and she was given the opportunity to make representations with the benefit of her trade union representative as to how that incorrect estimate may or may not have contributed to the fairness of her dismissal.

 

(b)       it was clear from the evidence of the respondent’s witnesses that the compensation payment did not form any part of the respondent’s decision making process.  The respondent could have applied a reduction to the amount of the compensation payment the claimant was to receive but did not do so.  It would appear that the error in the calculation arose in the Civil Service Pensions Branch because they made the calculation based on her 38/39 years of service rather than her one year of service after partial retirement.

 

(c)       Although it was unfortunate that the estimate that the claimant was given prior to her dismissal was so grossly inaccurate, the claimant can have no entitlement to get anything more from Pensions Branch than her contractual entitlement.  While the claimant may have some remedy in a complaint to the Financial Ombudsman due to the distress she has suffered as a result of the gross inaccuracy in calculation, that is outside the scope of these proceedings and does not bear on the issue of the fairness or otherwise of the claimant’s dismissal on the ground of capability.

 

96.      In relation to the claimant’s contention that her dismissal was unfair because the letter of 3 February 2015 had come unexpectedly after the claimant had returned to work on 6 January 2015, the tribunal is satisfied from its findings at paragraphs 13-17, 21, 22, 27, 28, 35, 37 and 38 above that after the claimant had returned to work on 6 January 2015 she should reasonably have been aware that that would not have prevented dismissal being considered.  The tribunal is also satisfied that the claimant raised this matter at her appeal hearing and that Mrs Ingram considered it carefully in light of what the claimant had stated and in light of the documents which she had and that her conclusion that she could not accept that the claimant had been unaware that dismissal was an option on her return to work on 6 January was reasonable. 

 

97.      In relation to the claimant’s contention that her dismissal was unfair because the respondent dismisses more of their staff under the Inefficiency absence policy than other Departments, the claimant put forward no evidence to substantiate this contention and the tribunal is satisfied from Mrs Ingram’s evidence, that as far as she could ascertain, the claimant had not been treated inconsistently in comparison with others.

 

98.      In relation to the claimant’s contention that her dismissal was unfair because Pensions Branch had failed to ensure that the estimate provided had been calculated correctly and that the respondent did not pay the incorrect amount, the tribunal fully appreciates the devastating effect that the incorrect estimate for the compensatory payment has had on the claimant.  However the tribunal agrees with Mr Sands that the dismissal and the payment are two separate matters.  The tribunal also agrees with Mr Sands that while it is unfortunate that the estimate the claimant was given prior to her dismissal was so grossly inaccurate, the claimant has no entitlement to receive anything other than her contractual entitlement and that whether or not she has some remedy in another jurisdiction, that remedy does not lie with the industrial tribunal.  The tribunal would however make it clear that in such a large organisation it is very important that steps are taken to ensure that estimates are calculated correctly to avoid the devastation that has been caused to the claimant in this case.     

 

99.      In relation to the claimant’s contention that her dismissal was unfair because she could have applied for the Voluntary Exit Scheme if she had been made aware of the correct amount of the compensation payment, the tribunal is satisfied that under the terms of the Scheme any application by her would not be considered until the inefficiency proceedings had been concluded.  The tribunal is also satisfied that when the claimant raised this during the appeal meeting, Mrs Ingram investigated this matter and informed the claimant that even if she had not been dismissed her application would not have been successful because of the “value for money” criterion.

 

100.    In relation to the claimant’s contention that her dismissal was unfair because Mrs Ingram who had never met the claimant before and only had previous notes of the case conducted the appeal hearing, the tribunal is satisfied that the respondent has acted fairly and in accordance with its own policy and the Labour Relations Agency Code of Practice, by ensuring that a more senior manager who was not previously involved with the claimant’s case heard the appeal and that the respondent acted fairly in doing so. 

 

101.    The tribunal is satisfied that:

 

(i)        the respondent had a fair policy in place for managing and dealing with sickness absence;

 

(ii)       the respondent applied that policy fairly to the claimant by taking the steps which are set out at paragraphs 13-78 above and in particular:

 

(a)       the respondent treated the claimant with sympathy and understanding throughout;

 

(b)       the respondent made the claimant aware of the support services she could avail of;

 

(c)       the respondent kept in contact with the claimant throughout her sickness absences to try to resolve any problems she might be having, to discuss areas of concern and to explore support measures to aid her recovery and to help her to return to work;

 

(d)       the respondent made the claimant aware of the consequences which included dismissal if her level of attendance did not improve sufficiently;

 

(e)       the respondent issued a Written Warning and Final Written Warning and gave the claimant the opportunity to improve before moving to consider dismissal;

 

(f)        the respondent provided the claimant with details of how to apply for ill health retirement if she intended to do so;

 

(g)       the respondent consulted with the claimant, her line management, the Occupational Health Service and the Welfare Support Service before deciding to dismiss her;

 

(h)       the respondent invited the claimant to review meetings to consider her absences and gave her the opportunity to make written submissions if she was not well enough to attend the meetings;

 

(i)        the respondent invited the claimant to a consideration of dismissal meeting at which she could be accompanied and at which she would be given the opportunity to put forward any relevant information she wished before they considered whether or not to dismiss her;

 

(j)        the respondent suggested adjustments when the claimant indicated that she would be unable to attend the consideration of dismissal meeting to enable her to participate and gave the claimant the opportunity to put forward any adjustments that she considered might enable her to participate in the consideration of dismissal meeting;

 

(k)       Ms Tunnah considered the matters set out at paragraphs 56-58 above before making the decision to dismiss the claimant.  In particular she proceeded on the basis that the claimant did meet the test of disability under the Disability Discrimination Act 1995 and considered whether there were any reasonable adjustments that could be made to support the claimant and to enable her to return to work but in light of the assessment made by the Occupational Health Service and the claimant’s own view, having consulted with her general practitioner, that there were no adjustments that could be made that would enable the claimant to return to work;

 

Ms Tunnah acted reasonably in treating the claimant’s incapability arising from her ill-health absences as a sufficient reason for dismissing her because her level of attendance had not shown a significant or sustained improved and could not be sustained by the respondent. 

 

102.    The tribunal is also satisfied that the respondent permitted the claimant to appeal the decision out of time and that she and her trade union representative, Mr McKillop, were able to put forward all the points they wished to, that Mrs Ingram considered the points they put forward together with the documentation she had been provided with and she investigated the position with regard to early exit and that her decision that Ms Tunnah’s decision to dismiss the claimant should be upheld was also reasonable.  The claimant’s complaint of unfair dismissal is therefore dismissed. 

 

Breach of contract

 

103.    Mr Sands submitted that the compensatory payment is a discretionary payment, based on a formula.  The respondent has authority to authorise all or part of the compensatory payment but the calculation of the payment comes within the authority of the NICS Pensions Department which is part of the Department of Finance & Personnel.  The fact that the estimate the claimant was given was incorrect does not mean that she is entitled to that incorrect amount.  Her only legitimate expectation is to what she is entitled as a matter of contract.  While the claimant may feel that she is entitled to compensation for the stress and inconvenience she has suffered due to the gross inaccuracy in the calculation of the estimate, that is not within the gift of the respondent.  The claimant has not developed these issues in her witness statement or at all and the respondent contends that on the evidence before the tribunal no claim for breach of contract has been made out and should be dismissed.   

 

104.    As set out at paragraphs 83-85 above, the tribunal was satisfied that the claimant was dismissed for incapability due to inefficiency as a result of genuine ill health absences and that she had not entered into a contract with the respondent whereby she was to receive £25,000 in return for leaving.  In those circumstances the tribunal is not satisfied that the claimant has established that the respondent had breached her contract by not paying her the estimated £25,000.  Even if the tribunal is wrong in that conclusion, the tribunal agrees with Mr Sands that if the respondent breached the claimant’s contract she is only entitled to the correctly calculated compensation which is the lower amount.  The claimant’s complaint of breach of contract is therefore dismissed.  In so far as as the claimant contends that the respondent breached her contract by failing to pay her notice pay, the tribunal concludes that that complaint must also fail before this tribunal because the claimant unilaterally waived her entitlement to notice so that she would be able to obtain the lump sum earlier.  

 

 

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing:  1 March 2016, Belfast

 

 

Date decision recorded in register and issued to parties: