Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 4386/17

 

 

 

CLAIMANT: Ian Andrew Quinn

 

 

RESPONDENT: Almac Pharma Services Ltd

 

 

 

DECISION

 

The decision of the tribunal is that the claimant was fairly dismissed by the respondent on ground of capability due to ill-health and his claim of unfair dismissal is therefore dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Mr I Wimpress

 

Members: Mrs D Adams

Mrs E McFarline

 

 

Appearances:

 

The claimant was not represented and appeared in person.

 

The respondent was represented by Mr Peter Bloch of the Engineering Employers' Federation.

 

 

SOURCES OF EVIDENCE

 

1.             The tribunal received a bundle of relevant documents that was supplemented in the course of the hearing and heard oral evidence from the claimant, Mr Philip Lightowler and Mr Michael Freeland all of whom provided witness statements on which they were cross-examined.

 

THE CLAIM AND THE RESPONSE

 

2.                                             The claimant brought a claim of unfair dismissal arising from his termination of his employment with the respondent on 23 May 2017. The claimant's claim form focused on a kidney problem which he was hospitalised for which gave rise to his first attendance warning; the effect on his health of working a continental nightshift pattern; the refusal to move him to a different work pattern and the refusal to allow him to use holidays to cover sick leave whereas others were permitted to use his holidays to cover sick absence. The claimant sought reinstatement and compensation.

 

3.                                             The respondent denied that the claimant was unfairly dismissed and asserted that he was fairly dismissed on capability grounds following a disciplinary hearing which was both procedurally fair and adhered to the three step minimum process. The claimant was also afforded the opportunity to appeal the decision to dismiss him but failed to avail of that right until 6 weeks after the specified time limit without any reasonable explanation. The respondent accepted that staff could be permitted to use holidays to cover sickness absence but that this was subject to the requisite notice being given in advance and operational considerations.

 

THE ISSUES

 

4.                                             It was not in dispute that the claimant was dismissed or that the reason for dismissal, capability, was a potentially fair reason for his dismissal. As the dismissal was admitted the only relevant issues were whether the claimant had been unfairly dismissed and if so whether he should be reinstated and what compensation, if any, he was entitled to. The claimant sought to raise contentions about protective clothing and the side effects of the materials that he worked with during the manufacturing process but as explained to the claimant these matters fall outside both the scope of his claim and the jurisdiction of the tribunal.

 

THE FACTS

 

5.                                             There was no real dispute on the relevant facts most of which appear in
Mr Lightowler's witness statement which the claimant did not take issue with and we largely adopt.

 

6.                                             The claimant commenced employment with the respondent on 2 December 2002 and at the time of his dismissal his job title was Senior Operator Grade 2 and he was based in Building 8/8a in the respondent's premises at 20 Seagoe Industrial Estate, Craigavon. The operations undertaken in this building involve the manufacture and packaging of product, including laxido, on a continental day and night shift pattern. The claimant's pay before tax was £2,390.93 per month with a net take home pay of £1,829.85 per month.

 

7.                                             Prior to April 2015 the respondent's absence policy was based on the Bradford Factor points system. The first trigger for disciplinary action under this policy was 300 points in a rolling 12 month period.

 

8.                                             Under this system the claimant was issued with a verbal warning for absence on 18 August 2014 in respect of five occasions of absence totaling 25 days. This equated to 625 points under the Bradford Factor. The claimant appealed against the verbal warning and was absent from work on two occasions when the appeal hearing was scheduled due to sickness absence occasioned by kidney stones. Mr Lightowler and Suzanne Turbitt, HR Business Partner upheld the verbal warning being satisfied that there was no underlying medical condition or trends identified. During the appeal process the claimant raised concerns about his diagnosis of kidney stones and the risk of further disciplinary action as a result of his two further periods of absence. The respondent referred the claimant to Occupational Health which recommended that the respondent might wish to consider an acceptable level of absence outside the Bradford Factor for a number of weeks to allow the kidney stones to pass. Thereafter the claimant had four further spells of absence totaling 8 days in relation to his kidney stones but no action was taken based on Occupational Health's advice.

 

9.                                             The claimant attended a review with Ms Arlene Donnelly, an Occupational Health Advisor, on 11 November 2014 in relation to his kidney stone condition. The claimant reported that he had had two spells of absence due to this condition and that he was to be reviewed in hospital on 19 December 2014. Ms Donnelly, in her email report of the same date stated that the claimant appreciated being in and out of work when for a night here was difficult for his shift due to limited manpower and that he had asked his supervisor if any options were available to achieve an amicable compromise. Ms Donnelly also advised the claimant that although it was not possible to be definitive she would expect the kidney stones to pass within a number of weeks.

 

10.                                          As a result of Occupational Health's advice the respondent accommodated a move to continental dayshift from 24 November 2014 to help the claimant manage his health condition and to enable the stones to pass. The claimant was absent from work again on 18 to 23 December 2014 due to kidney stones. He had a total of six periods of absence on this account over four months. Occupational Health advised him to seek medication from his General Practitioner to better control the pain.

 

11.                                          On 5 January 2015 the claimant returned to continental nightshift at his request. On 14 January 2015 Mr Lightowler conducted a welfare meeting with the claimant to discuss his absence from work on 18 to 23 December 2014. Mr Lightowler explained that the respondent had not taken further disciplinary action as a result of Occupational Health's advice but that he was concerned about the impact of claimant's continuing absence and whether this was sustainable.

 

12.                                          A new Absence Management Policy was implemented on 1 April 2015 following a review and benchmarking by Senior Management and Human Resources together with consultation with employees who were supportive of the proposed changes. The trigger levels under the new policy were as follows:

 

•                           Level 1 trigger - 3 occasions or 8 days (verbal warning)

 

•                           Level 2 trigger - 2 further occasions or 5 days during live sanction (written warning)

 

•                           Level 3 trigger - 1 further occasion during live sanction (final written warning)

 

•                           Level 4 trigger - 1 further occasion during live sanction (dismissal)

 

All sanctions issued under the new policy remained live for twelve months. All employees were given a clean sheet under the new policy with all absences under the previous being disregarded.

 

13.                                          Following the introduction of the new system the claimant was absent from work for 4 days from 22 to 28 April 2015 with flu. He was subsequently absent for 19 days from 10 July 2015 to 13 August 2015 due to general disability. These absences totaling 23 days triggered the first stage of the new policy. During the claimant's second period of absence he was reviewed by Occupational Health who advised that his absence was due to flu like symptoms. The claimant indicated that while on nightshift he had difficulty in establishing a routine on his days off and that his General Practitioner was to carry out more tests. Occupational Health advised that they could not declare the claimant unfit for nightshift. There was a further review with Occupational Health on 13 August 2015 who advised that all tests had been completed and no abnormality was detected. The claimant expressed a desire to move to an alternative shift but was deemed fit to return to nightshift with no restriction.

 

14.                                          The claimant returned to work on 17 August 2015 and attended an absence review meeting. The outcome of the meeting was to proceed to the formal process and at a disciplinary hearing on 1 September 2015 the claimant was issued with a verbal warning. The claimant appealed against the warning on 5 September 2015. The HR Manager, Sara Currie, wrote to the claimant on 11 September 2015 and asked him to set out his grounds of appeal. Having received no response Ms Currie phoned the claimant on 21 September 2015 who advised that he had received her letter but was not going to proceed with the appeal.

 

15.                                          The claimant was absent from work again for 6 days from 24 November 2015 to 3 December 2015 with a viral illness/cold. As the previous verbal warning remained live and the period of absence hit the Level 2 trigger 2 this resulted in an absence review meeting on 8 December 2015 and formal disciplinary process thereafter. A disciplinary hearing took place on 21 December 2015 and the claimant was issued with a written warning. The claimant was advised of his right of appeal but did not exercise it.

 

16.                                          Within the lifetime of the verbal warning the claimant was again absent for
3 days from 26 to 30 June 2016 with vomiting and diarrhoea. As this reached the Level 3 trigger an absence review meeting was held on 13 July 2016 and formal disciplinary process took place thereafter. As a result the claimant was issued with a Final Written Warning. The claimant was advised of his right of appeal but did not do so.

 

17.                                          The claimant was granted a period of compassionate leave from 21 September 2016 to 18 October 2016 to provide post-operative care for his mother.

 

18.                                          Within the lifetime of the Final Written Warning the claimant was absent for two days from 14 to 15 April 2017 with vomiting and diarrhoea. Mr Chris McCombe, Production Supervisor, conducted an absence review meeting with the claimant on 30 April 2017. As the claimant's absence had reached the Level 4 trigger point the matter proceeded to a formal disciplinary process.

 

19.                                          The claimant was invited by letter dated 9 May 2017 to attend a disciplinary hearing on 18 May 2017. The letter advised the claimant of his right to be accompanied and that a potential outcome could be dismissal. Mr Lightowler conducted the meeting along with Ms Currie. The claimant was accompanied by a colleague, Mr John McConville. At the hearing the claimant raised a number of points which the panel adjourned to consider. These were -

 

•   The claimant believed that the continental shift pattern was contributing to his absence.

 

•   Others had been moved off nightshift whilst his request had not been facilitated.

 

•   The claimant had requested holidays for 14 and 15 April 2017 when he called in to advise that he was unable to attend work. His request was declined but he believed that other people's requests were approved.

 

•   He had an underlying medical condition, kidney stones, which had resulted in several absences and contributed to the triggers reached under the absence management policy.

 

20.                                          Ms Currie emailed Occupational Health on 18 May 2017 in order to ascertain whether the claimant's absence could have been caused by working nightshift. Ms Donnelly replied by email on the same day and advised that there was nothing to suggest that the claimant was unfit for nightshift and that he had attended a night workers assessment in February 2017 and reported no issues.

 

21.                                          Mr Lightowler looked into the circumstances of those whom the claimant had identified as having been moved off nightshift whilst his request had not been facilitated and made the findings in respect of each which may be summarised as follows -

 

Karol Gniadek - He was not moved off continental nightshifts

 

Beata Tokarczyk - She requested to be added to the transfer list and was transferred off nightshift when a vacancy arose. Staff with live disciplinary warnings such as the claimant are not permitted to be added to the list.

 

Joao Almeida - He was also on the transfer list as he had no live disciplinary warnings and was permitted to transfer off nightshift when a vacancy arose.

 

Don Blevins - Although he had a live disciplinary warning he was permitted to transfer based on medical grounds following his demotion to Operator. He was also unable to remain as Operator on the continental nightshift as there were no Operator roles on that shift.

 

Phil Wilson - He had no live disciplinary warnings and was on the transfer list. He was permitted to transfer off nightshift when a vacancy arose.

 

John Byrne - He was permitted to transfer from continental dayshift following a request for flexible working based on his caring responsibilities. This also required him to move to a lower level role.

 

Gregg McLaughlin - He was transferred on temporary basis on medical grounds following advice from Occupational Health as a temporary adjustment. He subsequently returned to working continental dayshift.

 

Killian McCann - He was transferred continental dayshift to rotational shift on medical grounds following advice from Occupational Health.

 

22.                                          Mr Lightowler and Ms Currie also met with the Shift Manager, Mr James Taggart, in relation to the holiday rules. Mr Taggart set out the rules in an email to Mr Lightowler on 18 May 2017. Mr Taggart stated that only three people are permitted off at any one time save for the fourth shift when only two are permitted due to smaller numbers on that shift. If an Operator wanted to request a holiday it had to be made no later than the end of the shift directly prior to the holiday shift being requested. A half shift holiday may be requested at the start of the shift and this may be granted if less than the maximum number of Operators are off and the workload for that particular day is achievable. The claimant's last worked shift was on Monday 10 April 2017. He was granted compassionate leave on Tuesday 11 April 2017. Wednesday 12 and Thursday 13 April 2017 were non-working days as were Monday 17 and Tuesday 18 April 2017. In addition, he had a pre-booked holiday on Sunday 16 April 2017. The claimant called in just before the start of his shift on Friday 14 April 2017 and advised that he was unwell and would not be returning until Wednesday 19 April 2017. He asked if he could take holiday that night and the following night. Mr Taggart did not approve the Friday night as the required notice had not been provided. Nor was the Saturday night approved as a full allocation of holidays had already been made.

 

23.                                          The disciplinary hearing reconvened on 23 May 2017. Mr Lightowler advised the claimant as to the results of his further enquiries. During the course of the hearing Mr McConville also made enquiries as to the approval of holiday requests made by others on 14 and 15 April 2017 and advised that Mr William Colville had an approved half day holiday on 14 April 2017 in respect of Mr McConville himself and that Mr William McCrory had an approved full day holiday on15 April 2017 in respect of Bobby Carragher.

 

24.                                          The claimant was afforded the opportunity to make any further points that he wished. In response to a statement by Mr Lightowler that they couldn't find any medical evidence to support the suggestion that continental shift impacted negatively on absence the claimant indicated that he had been told that he could bring a letter from his General Practitioner who had raised concerns that he was seeing him more often. The claimant further stated that his immune system was not good so illness affected him more and he took longer to recover. In relation to his kidney stones the claimant indicated that he had not had any flare ups since 2015 and that the absence in April 2017 was just a bug. The panel gave a verbal decision on the same day to the effect that the claimant was to be dismissed with notice and that he would have a right of appeal within five days of receiving the outcome letter.

 

25.                                          On 24 May 2017 Ms Currie wrote to the claimant and formally advised him of the outcome of the disciplinary hearing. Ms Currie set out the warnings that were administered and the points that the claimant wanted to be taken into consideration. The panel concluded that the claimant had five spells of absence before going on continental nightshift; that Occupational Health concluded that there was no medical reason to declare the claimant unfit for working nightshift and that at an annual review with Occupational Health in February 2017 the claimant had not declared any issues in relation to nightshift working. The panel therefore did not consider that continental nightshift contributed to his absences from work. The panel accepted that others had been moved off various shift patterns for a number of reasons. The panel also accepted that the claimant was prepared to take holiday leave to cover his absence on 14 and 15 April 2017 and requested this by phoning in prior to the commencement of his shift on 14 April 2017 but the holiday request system was applied and there was no discrepancy in the approval process. The panel acknowledged that the claimant had previously had a number of spells of absence due to kidney stones which had been accommodated. The panel decided that the claimant would be dismissed with notice as he had a further period of absence whilst having a live final written warning on file and had therefore breached the respondent's absence management policy and procedure. The letter concluded by advising the claimant that as indicated at the hearing he had a right of appeal against the decision which should be made in writing to Michael Freeland HR Manager within 5 working days of the receipt of this confirmation.

 

26.                                          The claimant did not appeal within the specified time for appealing. It was not until six weeks later on 11 July 2017 that Mr Freeland received an undated appeal letter from the claimant. In the letter the claimant stated that he had received the outcome letter on 30 May 2017. As appears from the contents of the appeal letter the claimant misread the outcome letter and mistakenly believed that the time for appealing expired 5 working days after his dismissal and it was only after discussions with the Labour Relations Agency and his solicitor that he realised his mistake and acting on their advice he submitted a late appeal. The appeal letter contained four grounds of appeal which may be summarised as follows:

 

(1)                           The sickness policy was unfair as once a warning has been given it is difficult to get back from. In 29 years of employment including 14 years and 6 months with the respondent the claimant had never received a warning until he was hospitalized with kidney problems and then had two absences with a total of four and a half days which the respondent considered to be good grounds for dismissal.

 

(2)                           The claimant had been requesting a transfer from continental shift since 2014 as his doctor was concerned with his general health but could not get transferred because Occupational Health disagreed. In addition, as he was on a warning and continued to get warnings, because he could not get moved, a situation he described as a "Catch 22".

 

(3)                           The claimant did not agree with Occupational Health's statement that there were no issues regarding his shift pattern.

 

(4)                           As the claimant had only two months of the final written warning to go he would not have taken sick unless it was absolutely necessary. He also indicated that he could not know three days in advance that he was going to be ill and was refused holiday leave because he did not come in to work. He also questioned how the respondent could justify granting leave to two other people.

 

27.                                          Mr Freeland verified via the Royal Mail recorded delivery website that the claimant had not received the outcome letter confirming his dismissal until 30 May 2017. Mr Freeland having given consideration to the matter decided not to arrange an appeal hearing because the claimant had provided no reasonable explanation for failing to submit his appeal within the applicable timeframe or within a reasonable period thereafter. In so deciding Mr Freeland took into account the delay of 6 weeks in submitting the appeal and the failure to submit an appeal within a reasonable period after its expiry of the time limit. Mr Freeland also took into account that the claimant had been informed of the time limit both verbally and in writing and the claimant's prior knowledge of the appeal process including a previous appeal which was submitted within the required time period. Mr Freeland did not take the grounds of appeal into account. On 9 August 2017 Mr Freeland wrote to the claimant and advised him of his decision.

 

THE LAW

 

28.                                          The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (NI) Order 1996 ("the 1996 Order"). At Article 130 it is stipulated that it is for the employer to show the reasons for dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One potentially fair reason for dismissal is engaged in this case namely the capability of the employee. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant makes provision for dismissal on health grounds as follows:

 

" 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,

...

 

(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 , and

 

.....

 

(4) 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."

 

29.          Article 130A of the 1996 Order is concerned with the procedural fairness of dismissals.  Employees are regarded as unfairly dismissed if the statutory dismissal procedure was not complied with and the failure to comply was attributable to the employer. By Article 130A (1) of the 1996 Order where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair. A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07). The statutory disciplinary and dismissal procedures are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations.  Essentially there are three steps in the standard disciplinary and dismissal procedure which the employer must follow w hen considering the termination of any employment 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.

 

30. In exercising its discretion as to whether to order reinstatement under Article 147 of the 1996 Order the tribunal must take three matters into account under Article 150 namely -

 

(a) whether the complainant wishes to be reinstated,

 

(b) whether it is practicable for the employer to comply with an order for reinstatement, and

 

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

 

SUBMISSIONS

 

31.          On behalf of the respondent Mr Bloch made submissions in relation to the facts as they appeared from Mr Lightowler's unchallenged evidence and disputed the claimant's contention that he could have availed of two days sick absence as holiday leave. In relation to the continental night shift Mr Bloch drew attention to the Occupational Health advice that there was no reason why the claimant would not be fit to work this pattern. Mr Bloch also emphasized the respondent's sympathetic approach to the claimant and in particular the grant of one month's compassionate leave as well as the discretion that it exercised under the old policy by discounting sick leave accountable to the claimant's kidney stone condition. Mr Bloch pointed out that kidney stones did not feature and played no part in the decision to dismiss the claimant under the new policy. Mr Lightowler again exercised discretion and did not automatically dismiss the claimant because he had hit the trigger point but took care and investigated all of the matters raised by the claimant. Having done so Mr Bloch submitted that the decision to dismiss the claimant was clearly within the band of reasonable responses. Mr Bloch also submitted that the respondent had fully complied with the minimum statutory procedure. In relation to reinstatement Mr Bloch accepted that the claimant wished to be reinstated but disputed that it was practicable to order reinstatement or just, given that the claimant had contributed to his own dismissal.

 

32. The claimant disagreed with the respondent's evidence about the dates on which holidays were requested by his work colleagues and contended that both Mr McConville and Mr McCrory made their requests on 14 April 2017 but was unable to produce any evidence in support. In relation to the health basis for dismissal the claimant submitted that the respondent had not done sufficient to accommodate his circumstances and complained that he was in a "Catch 22" situation due to his warning. This was not a point that the claimant raised at the disciplinary hearing. The claimant also considered it unfair that whereas the respondent could move him within the business, he could not request a move because he was on a warning. The claimant also disputed that his illnesses had nothing to do with shift patterns and working with laxido and he believed that over three years eleven out of a fifty strong group had been moved either off laxido or from nightshift to dayshift.

 

CONCLUSIONS

 

33. The tribunal must consider whether the dismissal was fair or unfair in accordance with Article 130(4) and for this purpose the tribunal looks at the equity and substantial merits of the case. The tribunal needs to be satisfied that the employer acted reasonably in treating the reason for dismissal as sufficient for dismissing the employee in the circumstances known to the respondent at the time.  The reasonableness of the employer's decision is looked at the time of the final decision to dismiss namely at the conclusion of the disciplinary hearing or the appeal hearing, in the event of an appeal.  The tribunal's task is to assess whether the employer's actions were reasonable in this case which may be assessed by considering whether its actions fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. 

 

34. In the present case we are satisfied that the respondent acted reasonably. It implemented a new Absence Management Policy on 1 April 2015 following a review and consultation with employees. Under the previous policy the claimant had been issued with a verbal warning and had also been off sick on several occasions due to kidney stones. During this period the claimant had expressed concerns about the impact on his health of shift patterns. It is clear that the respondent entertained concerns about the impact of the claimant's continuing absence and whether this was sustainable. However, under the new policy everyone started with a clean sheet.

 

35. There was no dispute that the claimant hit the first two trigger points under the new policy and was therefore the subject of a Final Written Warning and thus at risk of dismissal. The claimant was clearly conscious of this and therefore sought to use holidays instead of sick leave, a practice which the respondent took no issue with as a matter of principle. The claimant did not however comply with the rules for availing of holiday leave and others had already booked off leave with the consequence that no further leave was permitted. As a result the claimant's request to use holidays instead of sick leave was refused. On one view the claimant might be regarded as unfortunate that this led to his dismissal but looked at in the round and in context it could not be plausibly suggested that the respondent acted unreasonably in this regard.

36. Having availed of further sick leave while the subject of a live final written warning the claimant put himself at risk of dismissal once the matter had been investigated by the respondent. The respondent conducted an Absence Review Meeting with the claimant and then quite properly invited the claimant to attend a disciplinary meeting in order to discuss whether a disciplinary sanction was appropriate. In the course of the disciplinary meeting the respondent fully investigated the matter including all of the points put forward by the claimant during the hearing and after giving the matter due consideration the respondent gave a written decision dismissing the claimant on 24 May 2017 in which it addressed all of the matters put forward by the claimant. The decision letter also informed the claimant of his right to appeal the decision to dismiss him within five working days of receipt of the letter.

 

37. The claimant who came across as an honest witness and we have some sympathy for him. It was not suggested by the respondent that the bout of ill-health that triggered the invocation of the dismissal procedure was not genuine and no sensible employer would want an employee to attend work while suffering from vomiting and diarrhoea. The decision to dismiss the claimant on one view might be regarded as harsh. However, the claimant chose to rely on other matters and we have to consider the matter from the perspective of a reasonable employer faced with the evidence that was adduced at the disciplinary hearing and the matters which were relied upon by the claimant at the time. We are satisfied that at this juncture the respondent acted reasonably in deciding to dismiss the claimant on the basis of capability due to ill-health.

 

38. As indicated in the decision letter the claimant had the right to appeal against the decision to dismiss him. He did not however seek to avail of this right until some 6 weeks after receiving the decision letter. We consider that Mr Freeland acted reasonably in refusing the appeal on the basis that the claimant had provided no reasonable explanation for his failure to submit his appeal within the applicable timeframe or within a reasonable period thereafter and given that he was informed of the time limit both verbally and in writing and had previous experience of the appeal process. Mr Freeland thus did not therefore go on to consider the substance of the appeal and we do not consider that he acted unreasonably in declining to address the substance of the appeal in these circumstances. A well-focused appeal brought within time could have resulted in the original decision being overturned but we cannot fault the respondent's refusal to entertain an inordinately late appeal in the absence of good reasons for the delay. We are therefore satisfied overall that the respondent acted reasonably in dismissing the claimant.

 

39. The respondent also complied fully with the three step statutory procedure.

 

40. The claim must therefore be dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 27-28 February 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: