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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Post Office v Rainbird [1994] UKEAT 876_92_0707 (7 July 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/876_92_0707.html
Cite as: [1994] UKEAT 876_92_0707, [1994] UKEAT 876_92_707
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At the Tribunal
HIS HONOUR JUDGE J HULL QC
MR P DAWSON OBE
MR J A SCOULLER
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR J TAYLER
(OF COUNSEL)
Brian A Holland LLB
Solicitor
The Solicitor's Office
Impact House
2 Edridge Road
Croydon CR9 1PJ
For the Respondent THE RESPONDENT IN PERSON
JUDGE HULL QC: This is an appeal by the Post Office against a decision of the Industrial Tribunal sitting in London North under the Chairmanship of Professor Rideout, with two Industrial Members, on the 23 June and 24 September 1992. The facts can be put very shortly.
Mr Rainbird began work for the Post Office as a counter clerk when he was aged, I think, 23, on the 18 February 1980. Much more recently he graduated to being a postman. Unhappily, he became long term sick. He had been doing some work at home and hurt himself. There is no argument about the genuineness of this. The Post Office has some strict rules, as they are entitled to, relating to people who are off long term sick. It is obviously a situation in which the employer is entitled to look for good faith on the part of the employee and to say "I trust you". The Post Office have a stated condition for receipt of sick pay that the recipient should not leave his home save to visit his doctor, to receive treatment or with the permission of the employer.
If one thinks about it, of course that they may be all very well in the case of many illnesses, but there may be cases where it is not so reasonable; and indeed it was admitted that a strict interpretation of this rule was not really practicable and that (say) a visit to the corner shop on good days when the sun was shining and the patient had been encouraged by his doctor to go for a walk whenever he could, would not be regarded by the Post Office as a breach of the rule. At the same time, the rule is not in any way wholly irrational; if it emerged that a person who was supposed to be at home suffering from some serious condition was in fact visiting the races, going abroad, or whatever, it would clearly give rise, in the mind of any employer, to misgivings about the good faith of the person concerned.
What happened on this occasion was that Mr Rainbird was observed on two occasions to go to a sub-post office, of course not run directly by the Post Office, and was observed there working. That clearly was enough to arouse the reasonable suspicions of the Post Office that they were not being dealt with in good faith by Mr Rainbird and therefore enquiries were set in motion. It was felt that he was working for, in effect, another employer when he was alleging that he was off sick. When the investigations were undertaken it was said by Mr Rainbird that all that had happened was that this was for a friend, that indeed he had helped him on occasion and he was simply helping out on each occasion for an hour; not being paid, it was simply an office of friendship, he felt well enough to help.
If the employer had felt in good faith that it could not accept that story, it could have been rejected. The employer could have said through the manager, who was conducting the enquiry "I do not accept this story; I think that you were abusing the position. You were not playing fair with us. You were in fact doing other work when you were pretending to be sick. We do not accept the good faith of your explanation". That would have been a very serious matter. But in fact his explanation was accepted. It was felt by the manager concerned that he could, and should, accept the explanation that this was a case of helping a friend out.
As the Tribunal well said, this was in those circumstances a breach of the employers' rules. They had to ask themselves; could any employer in those circumstances, the breach of the rule being established, say "this is so serious that it is gross misconduct which entitles me to dismiss this employee who has been with us for more than 10 years now, with no previous warnings or anything of that sort".
Needless to say, in answering that question the Tribunal will wish to rely particularly on its Industrial Members. As Mr Tayler very rightly said to us, one of the matters which the Industrial Members must bear in mind is that the rules about absence on sick leave have been worked out very painfully over the years with a view to maximum humanity consistent with efficiency and the employer is entitled to look for good faith in the employee just as the employee should in reverse look for reasonable consideration and fair dealing from the employer. If employees are going to abuse the system of sick leave then that is going to destroy the basis on which it rests. We entirely accept that.
There is no evidence whatever that the Industrial Members, or indeed the Chairman, overlooked that important point. They had the rule before them, it was admitted by the Post Office that the rule could not be taken quite literally and of course, much more important than that, they had the undoubted finding by the Post Office that their employee had not acted in bad faith, was not currently earning his living in a second separate job but was simply helping out a friend for an hour on each occasion.
In the circumstances the Industrial Tribunal asked themselves this question: does this response by the Post Office, dismissal fall within the band of responses which a reasonable employer could show in the circumstances? Now that might be said to be an imponderable; certainly for a person who is not experienced in Industrial matters. That is why the Industrial Tribunal has its Industrial Members. Could a reasonable employer in such circumstances reasonably and fairly conclude that he was entitled to dismiss the employee?
They answered that question "no". Mr Tayler says that that decision itself was a perverse one. It is rather a strange and abusive word to use, but it is the correct word. Is the decision irrational in the legal sense? The question we ask ourselves is not, "was this a decision which we would have reached in all the circumstances", but "looking at it broadly and fairly, is it a decision which the Industrial Tribunal was entitled to reach"? Or does it suggest that they took into account irrelevant considerations, ignored relevant ones, misdirected themselves in law, or in some other way, and whether for those reasons or otherwise, acted simply in the face of all reason, so that one says "My goodness this must be wrong".
We have considered it as carefully as we can and of course we have two Industrial Members here to whom, when that allegation is made on an appeal, this Tribunal has to have very special reference. Having considered it with Mr Tayler's assistance, for which we are very grateful, we have come to the conclusion that we cannot so describe the decision of the Tribunal and it is quite pointless for us to say whether we would have reached the same decision. We think that this Tribunal, bearing in mind the evidence which was adduced by the Post Office, was entitled to conclude that the Post Office could not as a reasonable employer reach the decision which they did on these facts. It follows that this appeal must be dismissed.