Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1793/17

 

 

CLAIMANT: Ruth Lynch

 

RESPONDENT: Northern Health and Social Care Trust

 

DECISION

The unanimous decision of the tribunal is that the claimant's complaint of unfair dismissal is dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Sheehan

Members: Mrs F Cummins

Mr B Collins

 

Appearances:

The claimant was represented by her husband, Mr Lynch.

The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by the Chief Legal Adviser of the Regional Business Services Organisation.

 

REASONS

 

The claim and response

 

1. On 11 April 2017 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" and "holiday pay" as the "NHSCT did not adhere to their absence policy".

 

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

 

"Northern Health and Social Care Trust's Managing Absence Policy states that an employee has to go to Stage 4 before being dismissed. I received letter dated 21/11/16 informing me that I had progressed to Stage 2 of the Managing Absence Policy. The Trust informed me in this letter that a further period of absence within the next 12 months would move me onto a Stage 3 and a referral would be made to Occupational Health. Then on 13/1/17 whilst still on a Stage 2 of the Absence Policy I was dismissed. I had not progressed to a Stage 3 or 4 as per Absence Policy"

 

2. On 23 May 2017 the respondent presented a response accepting that the claimant had been dismissed on 13 January 2017 but contended that the claimant had been fairly dismissed on the ground of incapability arising from ill health.

 

3. Following a Case Management Discussion on 6 July 2017 the case was listed for hearing on 3 to 5 October 2017.

 

4. The parties provided the tribunal with a folder of 245 pages, to which the tribunal attributed the exhibit number A. The folder contained the sickness records, emails and HR documents relevant to the Claimant's employment particularly those documents produced throughout the process conducted by the respondent in managing the claimant's absence from work due to sickness. It also contained the signed witness statements of the claimant and 3 witnesses on behalf of the respondent namely:

 

(i) Catherine Troy, the claimant's immediate line manager from April 2015 to January 2017 and the MSK Pain Service Admin Manager within the respondent's MSK Pain Service Department;

 

(ii) Kim Hamilton, the immediate line manager of Catherine Troy and MSK Pain Service Manager. She was a departmental manager since 2007 for the respondent;

 

(iii) Neil Martin, an Assistant Director within the respondent organisation who sat on the claimant's appeal against her dismissal.

 

5. On the second and final day of the hearing, leave was sought by the respondent for a fourth witness to be called on behalf of the respondent, to specifically provide clarification in respect of the Managing Absence Protocol (hereafter referred to as MAP). Leave was granted by the tribunal for this witness who was Jane Brady, a Senior Human Resources Manager for Employee Relations within the respondent organisation. The tribunal also received three additional documents which included Notification of Leaving dated 18 January 2017, an extract of text messages exchanged between the claimant and Catherine Troy in June 2016 and the claimant's Job Seeker's booklets recording the steps taken by the claimant to seek alternative employment. These three items were attributed the exhibit references B, C and D respectively.

 

6. Prior to the commencement of the Hearing on 3 October 2017 the tribunal read the witness statements included in Folder A together with the documents referred to in those statements. At the outset of the hearing it was indicated to the tribunal that the respondent acknowledged that not all the holiday pay due and owing to the claimant had yet been discharged but that an agreed outstanding amount would be paid to the claimant direct to her account as part of the October 2017 pay roll. Both parties were in agreement that no order was required from the tribunal in respect of the claim for holiday pay. It was agreed the hearing would proceed solely in respect of the claim for unfair dismissal. All the witnesses named at paragraph 4 above gave evidence under oath or affirmation and adopted their witness statements as their direct evidence before being subjected to questioning by other party and members of the tribunal. Ms Brady gave oral evidence also. Both parties, on conclusion of the evidence, made oral submissions.

 

Relevant Facts

 

7. Having considered the sworn evidence of the witnesses and the documentation provided, set out at paragraphs 4 and 5 above, the tribunal found the following relevant facts.

 

The Managing Attendance Protocol and Procedure

 

7.1 The respondent operates a Managing Absence Policy entitled Managing Attendance Protocol and Procedure, hereafter referred to as MAP. The version applying at the relevant time had an operational date of 9 December 2015. The Protocol was developed in consultation with local Trade Unions and it is stated in Section 1 of the document entitled: "Introduction": "it should be read in conjunction with the Regional policy Framework of Best Practice for Managing Attendance which sets out agreed core principles for the management of attendance in respect of the Northern Ireland Health and Social Care workforce". Section 1 also provides:-

 

"Everyone in the workplace at all levels feels the impact of ill health on attendance at work. It can significantly affect how an organisation performs and the level and quality of service we give our patients and service users ... The Trust is committed to provide a sympathetic, fair and consistent approach to promoting attendance at work"

 

7.2 There is reference to selected portions of the Regional Policy Framework including "The agreed approach is based on the acceptance that the health and well being of the workforce is critical to the effective functioning of any organisation and that the management of attendance is an important management issue which requires to be pursued in an open and transparent manner". It is also stated that "The partners to the regional framework also recognise that HSC organisations have a primary responsibility to provide high quality services to their population and that absence places additional pressure on employees who are not affected by illness". There is also reference to the Northern Ireland Audit Office (NIAO) 2013 report on "Sickness Absence in the Northern Ireland Public Sector" which recorded "it is essential that absence levels across the public sector are properly managed and monitored".

 

7.3 The Policy covers two management processes for sickness absence, Section 5 for repeated short-term absence and Section 6 for long-term sickness absence. The protocol also recognised there could be a mixture of short and long terms absence.

 

Management of short-term absence

 

7.4 Short term absence is defined as " absence likely to be one day up to a week but can extend up to four calendar weeks". Trigger points stated in the Policy, are the third spell of absence or where absence totals 10 working days or 75 working hours in any 12 month rolling period or any recognisable pattern of absence which will lead to Stage 1 informal counselling. If, following a Stage 1 meeting and the issue of a
Stage 1 letter, there is a further period of absence within the 12 month rolling period, the manager should conduct a Stage 2 - formal counselling meeting with the employee and issue a Stage 2 letter to the employee. If there is a further period of sickness absence in the rolling 12 month period the manager is required to request an Occupational Health report. A Stage 3 meeting is held with the employee to discuss their state of health, occupational health reports and any other evidence before the manager "will determine whether the level of absence is unacceptable or unsustainable". Unacceptable attendance is defined as "high levels of short term absences which are unrelated and which in terms of service needs are not acceptable due to the inability of the employee to regularly attend work and the consequent negative impact on service delivery". Unsustainable absence is defined as "series of recurring short term absences attributable to a specific medical condition which cannot be accommodated or sustained in terms of service needs ...".

 

7.5 The short term absence had four stages which after the third stage meeting if it is determined that the level of absence is unrelated and there is no underlying medical condition the employee will be issued with a Final Counselling - Stage 3 letter which will confirm whether the level of absence is unacceptable and that a further period of absence will result in the procedure for termination of employment (dismissal) being initiated. There were alternative processes where there was a specific medical condition or where the condition met the definition of disability. However where absence fell within the unsustainable category, the Stage 3 Final Counselling letter had to issue noting the main points discussed and stating what the sustainable and unsustainable levels of absence are with the employee having the right to request amendments to the notes of the discussion. Throughout the whole of the various steps "Managers are required to monitor and review sickness absence and bring to employee attention absence likely to breach the identified triggers. Managers have to assess all information and determine whether the absences fall under unacceptable definition rather than unsustainable". The tribunal heard evidence of what is meant by "informal counselling" as well as "formal counselling". The former was described as interaction between management and absent employee or Occupational Health and employee as well as accessing the services of Carecall, a professional service available to all staff when present or absent from place of employment. Formal counselling refers to meetings between manager and employee which are recorded and retained as part of the manager's and employee's records.

 

7.6 Where a further period of sickness absence occurs following the Stage 3 letter (unacceptable) issuing, the manager will meet the employee and advise of the steps to be taken as part of the Stage 4 - termination of employment for unacceptable absence. Paragraph 5.5 details the termination procedure which includes a letter (Step 1) inviting them to a meeting with a panel of two, both at "4 ^th level directorate Managers or above" and stating the "panel would be contemplating termination of their employment". The letter also should advise of their right to be accompanied and a report including all relevant documentation should be included with the letter and copied to the panel. The letter was required to state that if the employee preferred not to attend in person a decision could be taken on the documentation. If the pre-determined level of absence stated in a stage 3 letter (unsustainable) is reached then the Manager equally will meet with the employee to advise of the Stage 4 termination of employment letter to issue which is similar to the Step 1 unacceptable letter. The letter is followed by a panel hearing or meeting (Step 2) with the panel required to communicate their decision in writing within seven working days of the meeting. Should the employee be dismissed the employee had a right to appeal (Step 3) by writing to designated person, an Assistant Director, within their directorate within 7 working days. The officer will meet with the employee and give "consideration of the circumstances of the appeal and the reasonableness of the decision to terminate the contract of employment. The Manager who managed the absence under the protocol will also be in attendance at the meeting." The review meeting was to be conducted as early as possible with the employee being able to be accompanied by trade union representative or a work colleague.

 

7.7 The Protocol also addressed where there was a mixture of short/long term absence.

 

"5.7 There may be occasions when employees have a mixture of short term and long term absence or a number of spells of long term absence. At the time of each of the absences, the Manager will take action in accordance with the long term or short term absence section of the Managing Attendance protocol. Where an employee has had 2 short term absences amounting to less than 10 days followed by a long term absence, while the long term absence is dealt with in accordance with the long term section of the protocol it also means that this should be considered as the 3 ^rd period of absence in 12 months. Therefore, at the return to work interview with the employee the manager should inform the employee that as this is the 3 ^rd period of absence in 12 months for the purposes of the Managing Attendance protocol it is considered as Stage 1 (informal counselling) and therefore a further period of absence in the rolling 12 month period will take them to Stage 2 of the policy."

 

7.8 The tribunal heard evidence as to the meaning of unacceptable and unsustainable absences under the MAP. Neil Martin's evidence, which was not challenged, advised that unsustainable, within part 5 of MAP, relates to a high level of short term absences while unacceptable refers to a series of recurring short term absences. In fact the document itself defines at paragraph 5.4 unacceptable attendance as "high levels of short term absences unrelated ... in terms of service are not acceptable due to the inability of the employee to regularly attend at work and the consequent negative impact on service delivery". Unsustainable is defined also in the same page of MAP as "series of recurring short term absences attributable to a specific medical condition which cannot be sustained in terms of service needs due to the inability of the employee to provide regular and reliable attendance at work and the consequent negative impact on service delivery". Section 6 of MAP dealing with long term absence refers only to unsustainable absence and has a specific and different definition under that particular part of the MAP, to the definition provided in Section 5.

 

Management of Long-term absence

 

7.9 Section 6 of the Managing Absence protocol addressed the management of long term absence as well as recurring long-term absences. Paragraph 6.1 of the Policy provided that "long term absence for the purpose of the protocol is defined as continuous absence of 4 calendar weeks of more. Unsustainable absence is defined as "long term absence where there is no reasonable prospect that an employee will be well enough to return to work within a reasonable timescale and no suitable alternative redeployment opportunities exist to assist the individual in returning to work or in the case of a disability, where no reasonable adjustments can be made".

 

7.10. The policy made different requirements depending on whether the employee was undergoing treatment, required rehabilitation, redeployment or ill health retirement. However where, as occurred in the situation with the claimant, the employee was being considered for termination as a result of recurring long term absences paragraph 6.9 of the Policy provided:-

 

"6.9 There may be occasions when a manager identifies a pattern of long term sick leave eg the employee has a period of long term sickness absence each year. In such cases the manager should seek advice from the Human Resources Department. The basic principles laid down in this policy for the management of sickness absence will apply and may result in termination of the contract of employment on ill health grounds where the level of absence has become unsustainable."

 

7.11 Section 6 at paragraph 6.8 of the MAP addressed the termination of employment (dismissal) procedure for that section. The paragraph provides that where "an employee is likely to remain unfit for work for the foreseeable future and redeployment is not an option or they are not eligible or do not wish to apply for ill-health retirement, it may be necessary as a last resort, to terminate their contract of employment on the grounds of ill-health". There are various factors identified which consideration should be given to such as "the length of absence to date; the likely length of the continuing absence; the nature of the illness; any medical opinion/prognosis; and the effect of the continuing absence on the provision of service and on other employees. Where it is clear that the employee is not going to be fit within a timescale that can be accommodated, the manager should take action to terminate the contract of employment. This is also the case where the Occupational Health report indicates a review appointment has been made. Occupational Health should be advised of this."

 

7.12 Paragraph 6.8 goes on to detail a three step dismissal procedure which is exactly the same as the three step procedure detailed at 5.5 of the policy set out above at paragraph 7.6 of this decision. The only difference is that the policy provides that on termination of the employment on grounds of ill-health, employees are entitled to "one weeks' paid notice for each year of continuous employment subject to an overall maximum of twelve weeks".

 

7.13 The MAP at section 6, instead of the various Stages 1 to 3 counselling or meetings held under Section 5 of the policy for short term absence, provides for a series of formal attendance review meetings when addressing long term absence.

 

Paragraph 6.2 provides:

 

"The manager will meet the employee to discuss progress by four weeks continuous absence at the latest unless in exceptional circumstances eg hospitalisation or the employee is undergoing treatment and is not well enough to participate in a meeting.

At this stage the manager will consider referring the employee to Occupational Health if they have not already done so. The manager should discuss the referral and the purpose of the referral with the employee; ... The Occupational Health referral form should be completed by the manager and forwarded to the Occupation Health Department along with sick leave details and an up to date job description, which accurately reflects the duties of the post. The manager should give a copy of the completed Occupational Health referral form to the employee.

 

The manager will meet with the employee again when they receive the report from Occupational Health. During the meeting the discussion should include:

 

•                     the employee's current state of health;

 

•                     rate of recovery and likely date of return to duty;

 

•                     the opinion of the occupational health physician/Nurse Practitioner/doctor; and

 

•                     possible outcomes such as different working arrangements, alternative employment, ill-health retirement (if employee is a member of the HSC pension scheme) or termination.

 

Paragraph 6.3 provides:

"The manager should next meet with the employee at monthly intervals thereafter. The manager should make sure that they have an updated Occupational Health report as necessary in advance for discussion at this meeting.

 

It is not expected that anyone will remain in employment beyond 12 months sick leave but if Occupational Health gives a clear indication that an individual is not likely to return in the near future or not at all, the Termination of employment (dismissal) procedure may be initiated earlier."

 

The claimant

 

8. It was agreed by the parties that the claimant commenced employment with the respondent on 14 March 2005. At the time her employment ended on 13 January 2017 she was an administrative officer in the MSK Pain Service (hereafter referred to as MSK). The claimant had been redeployed to the MSK in April 2015, having had long term absences from her employment at other locations, with the same employer, relating to stress at work. In 2014 the claimant was absent due to stress at work for 136 working days from the 14 March 2014 to 5 October 2014. This was followed by a further absence for 79 working days from the 11 November 2014 to 11 March 2015. The claimant had 6 absences totalling 166 working days from when the claimant commenced with MSK on 1 April 2015, under the management of Catherine Troy, to the termination of her employment. The absences ranged from 3 days to 52 working days for a number of illnesses/medical conditions including gastrointestinal problems, throat infection, gynae procedure, kidney infection, flu/upper respiratory infection, injury to left eye, gallstones, diarrhoea symptoms, constipation, abdominal pain and stress at work.

 

8.1. The claimant's first absence while with MSK was an absence for 17 working days occurring from 29 October 2015 to 20 November 2015. A return to work interview was held on 24 November 2015. At that meeting the claimant was advised by her manager that a referral had been made to Occupational Health as the claimant reported still suffering slight symptoms (headaches and upper respiratory infection) and was still attending a treatment room. This absence period was classified as a long term absence. The claimant then had a short absence of 3 days due to an injury to her eye suffered when she slipped in the workplace. At the return to work interview held on 31 December 2015, it was noted that a referral to occupational health was in progress and a trigger had been reached with a Managing Absence meeting arranged.

 

8.2 The Occupational Health referral form completed on 31 December 2015 recorded the manager's concern that in the short period of time with MSK Pain Service the claimant had really had 4 periods of absence. In September 2015 the claimant had requested to avail of annual leave for an absence due to a tummy bug which the manager had acceded to. In any event the claimant was on her third episode of recorded sickness absence within a 12 rolling month period. The manager recorded that the claimant had a history of sick leave due to stress at work and the manager was keen to "ensure that this is not the case over these instances" and that the claimant "is able to cope with the workload". The referral also described the impact of these absences as "greatly impacts on work colleagues. We have a small team of admin staff and it is greatly felt and noticed when additional duties are bestowed on them due to periods of sickness". The employee is supposed to be given a copy of the Occupational Health referral form and a copy of any report received from the referral as per paragraph 4.4 of the MAP.

 

8.3 Following the claimant's return to work in December 2015 there was no further sickness absence until the 22 January 2016 when the claimant rang Catherine Troy to report illness namely a stomach virus. The claimant accepted she was advised at that time the latest illness would be reported to Occupational Health. A letter dated 25 January 2016 was issued to the claimant advising that as this absence was her 4 ^th absence in 12 months (3 since commencing her new post in April 2015) the manager intended to "seek advice" as she was "concerned at the level of absence ... since being with MSK Pain Service and I need to address sustainability of this within the team". This letter advised the claimant that she was currently being managed under the short term absence. The letter did not comply with the sample letters attached to the Managing Absence Toolkit document either as an invitation to a
Stage 1 to 4 meeting for short term absence or invite to long term or recurring long term absence. It was however clearly a letter placing the claimant on notice that she had hit the trigger for management under short term absence procedure and that her line management had some concerns of the impact of the absence on other team members. When the claimant contacted the manager by text on 3 February 2016 to check whether her sick line for a week had been received, the claimant confirmed on enquiry from her line manager that she had received the letter issued and understood the content.

 

8.4. The claimant continued to be absent submitting sick lines varying between 1 to
3 weeks until finally returning to work on 5 April 2016. This period of absence was classified as a long term absence as it covered a period of 52 working days. The sick lines referred to stomach virus, gastroenteritis, throat infection, gynae procedure and kidney infection. During the period of absence the claimant underwent a gynaecological procedure in early March 2016 and a number of sick lines referred to post-operative recovery. The claimant failed to attend the first occupational health appointment set for the 11 February 2016, arranged following the earlier absences set out at 8.1 and 8.2 above, which were being dealt with under the short term absence procedure. A further occupational health appointment for 10 March 2016 also was rearranged as the claimant was concerned about being able to attend following the gynae procedure set for 8 March 2016. On 4 March 2016 the claimant attended a managing absence meeting with Catherine Troy when she was advised she was being managed under the long term absence policy. A letter was issued following that meeting dated 7 March 2017. The letter recorded the claimant's expectation expressed during the meeting that she would return to work following the expiry of the sick line on 18 March 2016. An appointment with Occupational Health was rearranged for the claimant for 6 April 2016. The 7 March letter also recorded that the manager had discussed with the claimant her concern over the length of absence in the short time the claimant had been with the manager, its sustainability and its impact on the rest of her team. The letter recorded that the claimant had indicated in response to enquiry from her line manager that she "enjoyed her work" and there were no underlying reasons why she did not want to return. Again this letter did not accord with any of the sample letters attached to the Managing Absence toolkit but was clearly titled "Managing Absence procedure" as well as recording details of the matters raised and concerns discussed including the occupational health referral. The accuracy of the letter as a record of the discussion was not raised either at the time or during the hearing of this claim. A Return to Work interview form signed and completed by both claimant and Catherine Troy dated 5 April 2016 recorded that a stage under the Long term had been triggered. No issue was raised by the claimant until the appeal hearing against the decision to terminate her employment made on
13 January 2017 in respect of a failure to provide copies of the return to work interviews.

 

8.5 The claimant remained in work from 5 April 2016 until 25 May 2016 when the claimant rang her manager to advise she would not be in work for the rest of that week. She indicated she would be making a doctor's appointment and let the doctor decide what the condition would be. When a sick line was received on 1 June 2016 it recorded "stress at work" as the condition. The sick line was for 3 weeks. An urgent referral was made to Occupational Health by Catherine Troy, which records that "I had pointed out an error to her and this has resulted in her going off sick again the very next day before the matter could be discussed and rectified. I do feel that Ruth's sickness record is unsustainable as she has had numerous periods both short and long since commencing post with me in April of last year." The referral also recorded that management was "conscious that Ruth has historically been on sick leave due to stress at work and this is her 2 ^nd redeployment ... keen to do what is necessary to ensure that this is not the case ... and able to cope with the workload ... I am unsure why she states Stress at work on this occasion ... absence greatly impacts on her work colleagues. We have a small team of admin staff and it is greatly felt and noticed when additional duties are bestowed on them due to periods of sickness." At the time of this second occupational health referral this was the claimant's 5 ^th episode of sickness absence in an 8 month period running from 28 September 2015. The OH referral is expected under the procedure to be shared with the claimant and there was no record confirming that same occurred. The claimant did not raise any complaint regarding a failure to be provided with copies of the occupational health referral forms or the reports received on foot of the referral in her prepared statement of evidence included in Bundle A nor was Catherine Troy or any other witness cross examined in respect of any such failure.

 

8.6 These further absences led to the claimant receiving notice of a managing absence meeting arranged for 21 June 2016 which recorded in writing the absences since
29 October 2015 and their classification as "unacceptable". It recorded that the claimant's case had been referred to the Absence Case management Meeting for "advice on the best way forward" as well as confirming the claimant's trade union representative would be in attendance at the meeting. Once again the letter did not adhere to the sample letters provided in the toolkit. The claimant and her trade union representative attended the managing absence attendance meeting on
21 June 2016. The occupational health assessments obtained as well as the work issues were discussed. The claimant left the meeting having agreed to contact her manager following her GP appointment on 24 June 2016. It was after that appointment that the claimant submitted a further two week sick line and also requested redeployment from the post at the MSK Pain Service. Advice was promptly sought from Occupational Health regarding this request for redeployment and a clear response issued from the Occupational Health practitioner who had seen the claimant that "in her opinion there would be no medical grounds to support redeployment and I am not planning to review her". The claimant was advised of this contact and outcome regarding her request for redeployment in the letter dated 28 June 2016.

 

8.7. The 28 June 2016 letter adhered closely to sample letter Appendix G (record of meeting recurring long term). The letter recorded the matters discussed on
21 June 2016, including the assessment of the Occupational Health practitioner that the claimant was fit to return to work. Both Catherine Troy and Kim Hamilton gave evidence that they considered the meeting had gone well and was positive in nature. They were surprised when the claimant submitted a further certificate from her GP and left a telephone message for her line manager Catherine Troy that she sought a further referral to Occupational Health to seek redeployment from the MSK team. Ms Troy on contacting Occupational Health was advised by the same practitioner who had seen the claimant in April and June 2016 that in her view "there would be no medical grounds to support redeployment" and they had no plans to review the claimant. Section 2.2 of the MAP (roles and responsibilities of managers) made clear redeployment was to be considered where recommended by Occupational Health. The letter of 28 June 2016 advised the claimant that while management had verbally recorded in April 2016 that the claimant was at Stage 3 of the short term absence management procedure, as this was not confirmed in writing, instead of being at stage 4, she was advised that "stage 1 has been reached". The letter of 28 June advised the claimant of the views expressed by Occupational Health and that her absences were also being dealt with under long term absence. Specific mention was made of section 6.9 of the policy and the claimant's numerous episodes of long term absences. There was no dispute that the claimant had been provided with a copy of the MAP when the letter dated 25 January 2016 was sent to the claimant. The letter of 28 June expressly advised that the claimant's absence would continue to be monitored and "should you have, on your return to work, one more occasion of sickness absence I may, under 6.8, seek advice from HR to initiate the termination of employment (dismissal) procedure". The claimant did not raise any objection at the time to the contents of this letter.

 

8.8 The claimant submitted a further sick line on 7 July 2016 for 2 weeks which still recorded "stress at work" for the absence. A meeting was arranged for 20 July 2016 between the claimant and Ms Troy's line management, Kim Hamilton. The claimant then returned to work with effect from 21 July 2016 but availed of some holiday leave. The record of the delayed return to work interview held on 1 August 2016, due to Ms Troy's annual leave, indicates an intention to "take one day at a time" with training revisited as Ruth feels necessary "and in particular on referrals". Ruth feels happy about getting back into a return again and knows to come and speak with me at any time".

 

8.9 The claimant during her evidence accepted the record of absence prepared by Catherine Troy was accurate. The claimant also accepted the evidence of
Catherine Troy that she worked within a small team (5/6) and that her absence could have "significant impact on the team". No dispute was made in regard to the evidence received from Catherine Troy that the team was a small specialist unit with responsibility for pain management referrals across Northern Ireland. There were certain time critical tasks for the team linked to the traceability of records. Referrals were specialist triaged within 24 to 48 hours by clinical staff and then inputted into the computerised system. There was a six week target for appointments and a need for transcription of examination record within a departmental 2 week target. The team dealt with 12,000 new or review appointments per annum. The claimant gave evidence that she understood short term absence was for periods under 4 weeks and that absence in excess of four weeks was classified as long term absence. The claimant confirmed to the tribunal that she understood from the 28 June 2016 letter that a recurring long term absence could result in termination of her employment but she "didn't plan to be ill".

 

8.10 The claimant had no further absence upon her return in July 2016 until
18 November 2016 when she rang in to report sick in connection with gallstones. This absence, initially self-certified, was followed up with a GP certificate for one week, then another for two weeks and another for a further two weeks to cover the period 19 December 2016 to 2 January 2017. A letter was issued dated 21 November 2016 titled Managing Attendance, but was not a copy of the sample letters attached to the toolkit. The letter did not invite the claimant to attend a meeting but instead stated that the current sickness absence meant that the claimant has "now progressed to stage 2 of the Managing Absence policy. A further period of absence within the next 12 months will move you on to Stage 3 and a referral will be made to occupational health". This letter does not state whether the stage is under short term or long term absence procedure. It can only be read as applying to short term absence procedure as Section 6, which addresses long term absence, does not utilise those terms but instead refers to "Formal Attendance Review - first meeting and subsequent meetings".

 

8.11 The applicant's absence continued with varying descriptions of the reason for the absence, including diarrhoea symptoms, abdominal pain, and constipation. When the period of absence reached 19 December 2016, the claimant was then absent for a period exceeding four weeks. This period of absence now qualified under MAP as a further period of long term absence. On 20 December 2016 a letter was issued to the claimant inviting her to attend a meeting arranged in accordance with sections 6.8 and 6.9 - Recurring Long Term Absence- of the Managing Attendance protocol. It recorded that the claimant had previously been advised that her levels of sickness absence "since joining us in April 2015 are unacceptable and continue to have a major impact on our service". The letter made clear that the meeting arranged was "to discuss your level of absence and ... will be contemplating the termination of your contract of employment with the NHSCT". The claimant was advised of her right to be accompanied at the meeting and that the reports to be considered by the panel members would be forwarded in advance of the meeting to the claimant. While the letter didn't refer to the meeting as a Step 1 meeting under 6.8 it would have been clear to the reader of the MAP, a copy of which was in the possession of the claimant since January 2016, that that was the nature of the meeting to be held on 13 January 2017. The claimant in answer to cross examination on behalf of the respondent indicated that she had not expected to receive the 20 December 2016 letter "but she knew it was in the policy".

 

8.12 There was no dispute that in advance of the meeting of the 13 January 2017 the claimant was sent all the documents itemised at section 20 A to V of the index of the bundle of documents marked A. The claimant did not attend that hearing, as was her entitlement under the respondent employer's procedure but had contacted her trade union representative to indicate that the hearing could proceed in her absence. The respondent had no advance notice of the non-attendance of the claimant. No dispute was made regarding the record of the claimant's sickness absences provided in advance of the hearing. It appeared from the notes of hearing that the claimant was again seeking redeployment so that she could continue her employment with the respondent. There appeared to be no dispute raised during the hearing that the claimant worked within a small team and that her absences impacted on the team. The tribunal accepted the evidence of Catherine Troy, which was supported by the notes made of the panel members, that the claimant's trade union representative, at this meeting, did not make any assertions that the proper procedure under the absence management process had not been adhered to in respect of the claimant. Instead the claimant's representative requested the panel members to "consider something other than termination of employment".

 

9. The panel members, one of whom was Kim Hamilton, had evidence before them that more than one occupational health assessment of the claimant was carried out during the absence period running from October 2015 until her return on 1 August 2016. The claimant's manager had referred her to occupational health in December 2015 but the claimant postponed the appointment until she was eventually seen on 6 April 2016. The report recorded the variety of differing conditions that had resulted in her absence from work and also "this lady reports no symptoms of stress or anxiety in relation to her current post". On receipt of a sick line dated 25 May 2016 citing "stress at work" the claimant's manager made a further urgent referral to Occupational Health. The claimant was seen by the same practitioner who saw her on 6 April 2016. This time the report records "she has had a further period of sickness absence ... reports due to symptoms of stress which she attributes to work related issues. It is Mrs Lynch's perception that she is managed differently to her colleagues with regards to work related issues and this has caused her concern and upset". The claimant at the same time reported that "she enjoys work and the variations of her duties". The practitioner considered the claimant fit to return to work if the work issues were addressed and did not consider it necessary to arrange to review the claimant.

 

10. Catherine Troy in evidence outlined how repeated one to two week certificated absence from work for unrelated conditions impacted on management as replacement staff could not be sourced when the length of absence could not be projected with any certainty. Budgetary constraints meant that the work had to be covered by some staff working overtime on Saturdays to catch up on the backlog of transcription of reports as well as removal of flexible working for other staff members. There is no record of any dispute, initiated by or on behalf of the claimant, that the series of absences had potential for a negative impact on other members of the MSK team in terms of discharging the tasks required of the team within the agreed timescales.

 

11. The panel meeting of 13 January 2017 considered the undisputed sickness record before them as well as the impact for the small team within which the claimant worked. They noted there had been previous redeployment of the claimant and the sicknesses mainly concerned differing symptoms of ill health. They concluded the claimant's employment should be terminated, with pay in lieu of notice, under 6.9 of the managing absence protocol due to the recurring long term absences and "its unsustainability in a small team". A letter dated 16 January 2017 issued to the claimant advising her that "the level of your absence has become unsustainable" taking into consideration the needs of the service. The claimant was also advised of her right of appeal which she exercised by letter dated 23 January 2017. The appeal hearing was fixed for the 14 March 2017 and the claimant was advised of her right to be accompanied and furnished with the relevant documentation to her appeal.

 

12. The appeal was before two level 5 directors, Rebecca Getty and Neill Martin and the only other attendees were the claimant, her trade union representative, who had attended the earlier hearing on 13 January 2017, and Catherine Troy. At the appeal hearing the claimant disputed that the absence management procedure had been adhered to as she claimed she had never received counselling and she didn't receive a copy of her Return to Work Interviews. Catherine Troy raised the sustainability of the claimant's absences and the pattern of long terms absences. While Catherine Troy, in evidence, advised the tribunal that no point was raised regarding the correct process having been followed, it is clear from the panel member notes that this matter was raised during the appeal. The claimant and her representative raised the issue that the letter dated 21 November 2016 made no mention of potential termination due to recurrent long term absence. The response to that contention by management was the letter dated 21 November 2016 was only addressing the claimant's absence from 18 November 2016, which at that date was a further short term absence. The case made by the claimant before the appeal panel appears to have been that the relationship issues at work had been resolved and the claimant was "happy now to return to work". During the appeal hearing it was not disputed that since joining MSK Pain Service in March 2015 the claimant had five periods of absence of 18 days, 3 days, 52 days, 42 days and 51 days respectively which ended on 27 January 2017. The panel notes record that the claimant disputed there was a pattern of absence but accepted the level of absence was unacceptable. The appeal panel noted that the first reference advising the claimant her level of sickness absence was unsustainable for the MSK pain team was in January 2016. Both claimant and her manager were in agreement that following her return to work late July 2016 the claimant was more settled.

 

13. The appeal panel upheld the decision to dismiss the claimant. Neil Martin gave evidence that the panel considered that the 3 long term absences in 2016 during her placement within MSK was sufficient to warrant termination. The appeal hearing lasted approximately 45 minutes, not including the panel consideration post the oral contributions from the claimant, her representative and Catherine Troy. While the panel did reflect on the point made by the claimant's trade union representative that the 28 November 2016 letter should have mentioned that the claimant was still being managed under the long term process as well as short term, the panel felt enough information have been given in the various correspondence received during 2016 by the claimant to satisfy the panel that the claimant knew she was being managed under both elements of the MAP. The decision of the appeal panel was communicated to the claimant by letter dated 29 March 2017. The letter recorded the reasoning of the panel. It stated "there is no dispute that the level of absence is unsustainable". It recorded the panel's understanding that the crux of her appeal was that the claimant did not feel she had been adequately notified of the potential for termination prior to receiving the letter of 20 December 2016. The panel referred to the letter dated 28 June 2016 specifically indicating the possibility of termination in the event of one further episode of sickness absence. The panel took into account "the sustainability and acceptability of Ruth's absence had been raised with her in correspondence dated 25 January 2016, 7 March 2016, 14 June 2016 and 28 June 2016." The panel noted that Catherine Troy took advice from Human Resources and Occupational Health throughout the process. The appeal panel concluded the managing absence policy was appropriately and reasonably applied. The letter finally recorded that since 2011 the claimant had been redeployed on the grounds of work related stress due to relationship issues with colleagues three times. The claimant made a further request for redeployment in June 2016 but Occupational Health did not support acceding to that request.

 

14. At the conclusion of the hearing it was contended on behalf of the claimant that her dismissal was unfair for the following reasons:

 

(i) she was dismissed under the incorrect section of the procedure and earlier than she would have been had the correct procedure, section 5, been followed

 

and

 

(ii) having been dismissed in January 2017, the panel hearing her appeal failed to give proper consideration to the evidence provided at the Step 2 hearing.

 

15. Ms Finnegan submitted that:

 

(i) the respondent's case is that the MAP sets out 2 clear and distinct situations, one addressing short term absences and one addressing long term absences. It was equally clear from the wording within the document provided to staff that a mixture of short term absences and long term absences could fall to be addressed as an absence under one or other of the sections, depending on the length of absence, but perhaps triggering a different step or stage in the managing absence process. The decision to dismiss the claimant was based on objective facts, advice from the Occupational Health Service that the grounds for redeployment did not apply and the claimant's dismissal on the ground of incapability was reasonable and procedurally fair.

 

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

 

(a) There was no dispute regarding the absence history of the claimant. There was no single specific illness or condition which might have warranted management dealing with the claimant under a different section or process than the process the respondent elected to utilise to deal with the claimant; the conglomeration of differing complaints, most minor, resulted in both her immediate line management and those who reviewed the decision of the immediate line manager, concluding that the level of absence was unsustainable in terms of meeting service needs. The evidence of Catherine Troy was uncontested as to the difficulties caused by the claimant's repeated short and long term absences and the implications for clinical practice and patients.

 

(b) The claimant was invited to a number of meetings under the MAP and accepted that she was aware termination of her employment was a possibility following the 28 June 2016 letter and the 20 December 2016 letter. There was ample evidence that the claimant was informed and notified throughout the whole absence process conducted in 2016 that her absence had become an issue. Every effort was made to try to assist her, where possible, including arranging representation by a trade union official at the 21 June 2016 meeting. She and her trade union representative attended the appeal meeting and were given the opportunity to make representations as to the fairness of her dismissal.

Relevant Law

Unfair Dismissal

 

16. 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".

 

17. 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".

 

18. 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) 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 - 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'.

19. Harvey on Industrial Relations and Employment Law, Division D 1, paragraphs 1206 to 1208 records that each case depends on its own circumstances and to what extent an employer can be expected to wait any longer and if so how much longer. The fairness of the employer's decision depends on the facts and provided the approach adopted by the employer is right. Harvey lists a number of matters at paragraph 1208 relevant to this type of decision such as, the nature of the illness; the likelihood of the illness 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 or carrying out of the policy; the employer's own personal assessment of the individual and whether employee realises point of no return may ultimately be approaching.

 

20. 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".

 

21. 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 ...."

 

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

 

Dismissal

 

22. In this case the respondent conceded that it had dismissed the claimant but contended that the dismissal was fair. It was not in dispute between the parties that the reason for dismissal was the claimant's absences from work for various instances of "ill health". No other reason was put forward by the claimant that undermined the veracity of that reason. There was no issue raised of automatic unfair dismissal under Article 130A and the tribunal is satisfied that all steps 1-3 were followed by the respondent.

 

Ordinary unfair dismissal - Article 130

 

Reason for dismissal

 

23. 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.

 

24. Ill health is a potentially fair reason for dismissal. In summary the claimant's case was that she was dismissed too early under the relevant procedure as she had only been at stage 2 when she received a letter inviting her to a hearing that could result in termination. It appears from the claimant's claim form, witness statement and submission made that the main issue raised by the claimant was that the dismissal was not procedurally fair. Ms Finnegan submitted while the claimant says she was managed under the short term absence procedure, the respondent's case is the claimant was managed under both the short term and long term absence procedure as provided for under the relevant MAP. 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 earlier warnings that the levels of absence were unsustainable against the service needs of MSK Pain Service. The tribunal is satisfied for the purposes of Article 130(2) the reason for dismissal is a potentially fair reason for dismissal.

 

Fairness of dismissal

 

25. 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 tribunal had to apply its judgment to whether the employer acted reasonably in treating the claimant's capability as a sufficient reason for dismissal following the approach endorsed by the Northern Ireland Court of Appeal in Rogan -v- South Eastern Health & Social Care Trust (2009) NICA 47 which approved the guidance of Browne - Wilkinson J in Iceland Frozen Foods -v- Jones (1983) ICR 17. The tribunal also took into consideration Lynock -v- Serial Packaging Ltd (1988) IRLR 510 where 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."

 

26. The tribunal noted that a number of the matters highlighted in the Lynock case are reflected in the MAP at paragraph 6.8 as well as being highlighted in Catherine Troy's statement of evidence contained in bundle A at paragraph 4. The tribunal is satisfied that the respondent's procedure where there is a pattern of long term sick leave allowed for employees to be managed under a procedure guided by advice from the Human Resources Department. The MAP also permitted employees to be dealt with at the same time for a series of short term absence and recurring long term absence where the absences occurred within the same rolling 12 month period. There is no doubt in the tribunal's opinion that the claimant's absences from 28 September 2015, totalling 149 working days, caused serious pressures for other team members within MSK and affected the quality of service that could be provided by MSK.

 

27. The tribunal find it regrettable that despite advice being taken by Catherine Troy throughout her management of the claimant's various absences the letters issued were not formed from the sample letters provided in the respondents MAP toolkit. The tribunal considered the letters of 25 January 2016, 7 March 2016 and 28 June 2016 against the letters provided in the toolkit. The January 2016 letter while detailing the absences did not include detail of which stage of the process the claimant had reached. However it appeared to the tribunal that as the same letter provided a copy of the MAP, it could be understood by a reader that another absence in a 12 month period would lead to a Stage 2 meeting. There was no evidence that in advance of the meeting or letter issuing the claimant had been advised of her right to be accompanied by trade union representative. However no issue was raised during the hearing by the claimant regarding the January procedure. The letter in March 2016 complied with a sample letter (F) detaining record of a meeting regarding long term absence. However it failed to point out expressly to the claimant, as the sample F letter did, that the employee could seek any amendment or additions within a one week period. The tribunal did note however that the claimant was invited to contact her manager if she had any concerns. In respect of the 28 June 2016 letter the tribunal concluded it adhered closely to sample letter G - see paragraph 8.7 above. Accordingly the tribunal were satisfied that in the main the respondent adhered to the spirit and intent of the sample letters. Although the sample letters provided in the toolkit were not replicated, the claimant did not make the case that she was unaware of the purpose of the meetings she was requested to attend. The tribunal took into consideration that there was uncontested evidence from Catherine Troy that administration staff were reminded regularly at team meetings of the trust's policy library where the MAP could be accessed. While copies of the Return to Work (RTW) meetings were not provided as required under the procedure, the letters which issued to the claimant appeared to the tribunal to accord with the matters discussed during the RTW meetings. The tribunal noted in particular the claimant accepted that following the letter dated 28 June 2016 she was aware that further repeated absence left her vulnerable to termination. The tribunal noted that letter referred to "as highlighted in my previous correspondence with you, I am concerned about your sickness record to date and its sustainability, in particular to Sections 5.7 and 6.9 of the policy. You have had a mixture of short and long term absences since taking up post with me in April 2015 which is unacceptable. I had verbally confirmed with you on the last occasion that you were at Stage 3 of the policy and due to the total number of episodes you have had you should now be at Stage 4 - termination of employment (Section 5.5). However as this was not confirmed to you in writing I can advise that Stage 1 has been reached. I must advise that under Section 6.9 of the policy which deals with recurring absences you have had numerous episodes of long term absences. I will continue to monitor this and should you have, on a return to work, one more occasion of sickness absence I may, under 6.8, seek advice from HR to initiate the termination of employment (dismissal) procedure".

28. It was clear to the tribunal and the claimant that the reference to 6.8 was an error and clearly referred to 6.9 as that paragraph was referred to twice earlier in the same letter. This is obvious when both sections of the MAP are read. Section 6 paragraph 6.8 concerns itself where the employee is not going to be fit within a timescale that can be accommodated and includes termination for ill health retirement. Paragraph 6.9 concerns recurring long term absences or a pattern of such absences. In those cases the policy records "the manager should seek advice from the Human Resources Department". The tribunal did not consider the erroneous reference to 6.8 was sufficient to reasonably raise any confusion for the claimant. That appeared to be accepted by the claimant in her oral evidence. It is equally clear that the letter dated 21 November 2016, issued some 3 days following the claimant's report of a further sickness absence, was Stage 2 of the section 5 procedure. It appeared to the tribunal that the claimant was hanging the "unfairness" of her dismissal essentially on this letter and its absence to any reference to the Section 6 procedure. The tribunal noted the claimant had made no complaint or grievance in respect of the 28 June 2016 letter. The tribunal considered it noteworthy, in terms of the reasonableness shown by the respondent, that the continuing absence following the 21 June 2016 meeting and before the issue of the 28 June 2016 letter, in particular given the occupational health practitioner's confirmation on 21 June 2016 that the claimant was fit for work, were not treated by the respondent as an additional or questionable absence. It was not until absence occurred in November 2016 and continued throughout December 2016 that the respondent, once the absence exceeded four weeks, treated the claimant as having a further episode of long term absence (the third in 2016 alone).

 

29. The tribunal heard evidence about training provided both to managers and employees regarding the MAP, which was a document which had been subjected to revision during the claimant's service with the respondent. The tribunal formed the opinion that there is scope for the respondent to improve on the knowledge and training of its managers in respect of the MAP. This reflects the evidence of Neil Martin regarding his understanding of the definition of unsustainable and unacceptable absence. Further the fact that unsustainable is defined differently in section 5 and 6 of the MAP increased the importance that correspondence issued to the claimant terminating her dismissal or refusing the appeal made clear what definition of unsustainable was meant by the respondent's use of the term in that correspondence. The tribunal noted in particular the purpose for which the MAP was introduced in particular the references in Section 1 of the MAP set out at paragraphs 7.1 and 7.2 above. The flowcharts that are included in the MAP documentation draw attention to the sample letters as well as making clear that in respect of Long term absence (page 112 Bundle A) at the first meeting following four weeks absence once the occupational health report is available to discuss "employee's current state of health,...possible outcomes - differing working arrangements, alternative employment, ill health retirement, if eligible, or termination".

 

30. There was also the issue raised regarding the FAQ section (section 9) of the MAP which provided frequently asked questions and answers. Jane Brady was called as a fourth witness to deal with this section of the MAP in particular Q7 which addressed how occasions where staff have a number of spells of long term absence or a mixture of short term and long term absence are managed. The answer provided in the MAP reads "At the time of each period of absence, the manager will take action in accordance with the long term or short term absence section of the policy. Section 5.6 of the protocol provides guidance regarding this". The document then went on to provide an example. The example provided details dates of absence, both mixture of long term and short term, and indicating when they trigger Stage 1 to Stage 4 of the absence procedure. The tribunal was satisfied, having heard the evidence from the respondent witnesses that the reference to 5.6 in Section 9 was a typo graphical error and should have referred to 5.7. The tribunal accepted her evidence that the reference in paragraph 6.9 to "basic principles" means only that the manager would "hold meetings, advise of concerns regarding unacceptable or unsustainable absence, monitor absence, set targets to Return to Work plans and advise employee of consequences of recurring absence. The tribunal found it regrettable that the example provided only detailed the mixture of absences being dealt with as if under the short term (Section 5) procedure as that is the only procedure that had a four stage process. Long term absence procedure referred to Formal Attendance Review and subsequent review meetings, phased return programmes, redeployment, ill health retirement and Step 1 to 3 of termination of employment (dismissal) procedure. The MAP does not expressly state that the respondent or its managers can elect as to which section of the absence procedure is followed where the mix of short term and long term absences are approaching unsustainable levels to meet business or service needs. However such an election is equally not expressly ruled out. It appeared to the tribunal that the MAP has to be read in its totality. The tribunal was satisfied that the procedure followed in respect of the claimant accorded with the spirit of the LRA Code of Practice in particular paragraph 41.

 

31. The tribunal is satisfied that the circumstances of the claimant were not in any way a standardised pattern to be found with many other employees. In reviewing all the actions taken by the respondent to manage the claimant's absence, the tribunal concluded the respondent, as required by paragraph 6.9 of the MAP, adhered to the basic principles laid down in the policy. The tribunal accepted that the reference to basic principles refers to the various steps and stages set out in section 5 and 6 of the MAP to include a mixture of formal and informal management of the sickness absence of an employee. The claimant knew where she stood in respect of the management of the sickness absences and in particular knew when and why she was vulnerable to termination of her employment because of sickness absence and its unacceptable or unsustainable level in the view of management. The claimant accepted (a) she knew that any period of four weeks absence qualified as a long term absence, (b) she knew her episodes of absence could be dealt with as a mixture of short and long term absence and (c) she knew that the absence in November to December 2016 became a third long term absence in 2016 alone.

 

32. In relation to the claimant's contention that her dismissal was unfair as the appeal panel failed to give proper consideration to the evidence provided at the Step 2 hearing the tribunal is satisfied that the panel members did consider the matters raised by the claimant and her trade union representative but reached a different conclusion to that desired by the claimant. When the totality of the claimant's absences in the last years of her service are reviewed, there is a pattern of repeated lengthy absences, not related to any single medical condition other than "stress at work". The tribunal noted that the claimant appeared to react adversely if or when an issue was raised concerning the execution of her duties in work. The conclusions reached by the appeal panel members did not fall outside the range of reasonable responses for an employer with the size and administrative needs of the respondent. The claimant was not unfamiliar with the MAP during her lengthy service of 21 years, particularly since 2011 onwards, when there was a history of long term absences with the recorded reason for absence as stress at work. The tribunal did not consider that it could be concluded that the appeal panel or dismissal panel were unreasonable to take into account the claimant's previous history of repeated redeployment, which had been supported by occupational health and the situation in 2016 when redeployment was not being recommended by occupational health.

33. The tribunal considered the relevant paragraphs of the Labour Relations Agency Code of Practice on Dismissal and Grievance Procedures. There was no contention from the claimant that her dismissal was unfair because Mrs Kim Hamilton had attended the 21 June 2016 meeting and subsequently participated in the dismissal hearing on 13 January 2017. 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.

 

34. 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 8.1 to 14 above and in particular:

 

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

 

(b) 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 offer reassurance and support to help her return to work;

 

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

 

(d) the respondent invited the claimant to review meetings to consider her absences and arranged meetings at dates and time where she was well enough to attend the meetings and for the 21 June 2016 meeting a trade union representative attendance was secured;

 

(e) the respondent issued letters warning the claimant of the possible consequences of continuing sickness absences before moving to consider dismissal;

 

(f) the respondent, through the line manager, consulted with the claimant, the Occupational Health Service and Human Resources Department before deciding to dismiss her.

35. The tribunal is also satisfied that the respondent permitted the claimant to appeal the decision, that in that appeal she and her trade union representative were able to put forward all the points they wished to, that the panel members considered the points they put forward, and in light of the documentation the appeal panel had been provided with their decision that the initial panel's decision to dismiss the claimant should be upheld was also reasonable. The claimant's complaint of unfair dismissal is therefore dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 3 and 4 October 2017, Belfast

 

 

Date decision recorded in register and issued to parties: