United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 553_93_1907

Appeal No. EAT/553/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 July 1995

Before

HIS HONOUR JUDGE N BUTTER QC

MR P DAWSON OBE

MR J A SCOULLER

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THE POST OFFICE           APPELLANTS

B G COLETTA          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R GREENING

(Of Counsel)

THE SOLICITOR

The Post Office

Impact House

2 Edridge Road

Croydon

CR9 1PJ

For the Respondent MR E COFIE

(Of Counsel)

South Islington Law Centre

131-132 Upper Street

London

N1 1QP


 


JUDGE BUTTER QC: Mr Coletta worked for the Post Office from June 1986 until he was dismissed with effect from 2 November 1991. There was no criticism of his work as a Postman. He was dismissed on the basis of poor attendance. He applied to an Industrial Tribunal for a decision that he had been unfairly dismissed. This application was heard on 23 March and 10 May 1993 at London (North). That Tribunal unanimously decided that the dismissal was unfair but that Mr Coletta had contributed to it by 20%. The Post Office appeal against the decision of unfair dismissal. Mr Coletta cross-appeals in respect of the finding that he had contributed to his dismissal.

The background to the matter can be stated quite shortly. The employers have what is known as an irregular attendance procedure. According to the documents before us, there were some concerns in respect of Mr Coletta's attendance as far back as 1987 and the procedure was implemented in the following year. We move on in point of time however to 7 March 1991 when Mr Coletta received a final formal warning about his irregular attendance. He was away from the 1st to 9th May and 3rd to 7th June. In relation to the second absence, that concerned pustular tonsillitis. On 25 July 1991, a so-called "reason to urge letter" was signed by Mr Levison, the Deputy Head of Personnel. On 13 August 1991 there was an important interview conducted by Mr Lamb. A letter of dismissal was signed by Mr Lamb two days afterwards and subsequently Mr Coletta's appeal against the decision to dismiss was heard by Mrs Pawson on 15 October 1991. On 21 October she confirmed the decision to dismiss.

Much of the case before the Industrial Tribunal concerned Mr Coletta's absence from work for the period 1st to 9th May 1991. It appears that the reason for this absence was that he was suffering from myalgia in the left chest. It is said that this was due to the fact that he had been assaulted by his girlfriend. At the time he did not apply for special leave but submitted a National Health Certificate and his absence was dealt with on the basis of sickness. Reasons for absence were given as myalgia, left chest.

In their Reasons, the Industrial Tribunal dealt briefly with the interview by Mr Lamb but went on to deal much more fully with the appeal held by Mrs Pawson. It may be convenient if I turn to the critical paragraphs 13 and 15 in the decision:

"13. There are two problems in this case one is whether Mrs Pawson properly investigated the question of the assault. That is resolved by the fact that she has stated both at the appeals interview and in this Tribunal that she accepted that Mr Coletta had been assaulted. But it appears that she at no time considered whether as a result of that acceptance she should have taken out the 9 days and classed them as domestic distress or at any rate Mr Coletta should have been given the benefit of the doubt. Mr Lamb cannot be faulted for not considering that problem he did not know the position because Mr Coletta did not tell him or anybody else. We find that Mrs Pawson should have considered that problem, she did not. Had she done so the 9 days would have been eliminated from the sickness record then the comparison with Mr Dogherty would have been valid and Mr Dogherty's record, albeit there were longer gaps between his absences, would have been less favourable than Mr Coletta's.

15. On the facts of this case we are satisfied that if Mrs Pawson had given proper consideration to the 9 days absence due to an assault by a girl friend she would have classed it as domestic distress or she should have done. We fully appreciate that this Tribunal cannot interfere with the findings of employers if they are findings that a reasonable employer could have made even if we do not agree with it. But in this case proper consideration was not given to relevant factors. Therefore we find the dismissal to be unfair."

It gives this Tribunal no pleasure to say that we are unanimous in our view that the basis of the decision by the Industrial Tribunal is seriously and fundamentally flawed. The explanation may be because of the gap which existed between the hearing in March and in May and it is possible that the Members of the Tribunal did not remind themselves or remind themselves sufficiently of the evidence which they had heard at the first hearing. I need not go through all the documents but it is appropriate that I should highlight some of the documents to which our attention has been drawn. At page 116 there is a memorandum dated 25 July 1991 signed by Mr E A Lyons. He refers to an interview with Mr Coletta. He discusses the question of two absences and he goes on to say that:

"From the discussion that ensued it would appear that the absence during May of this year resulted when his girlfriend had hit him across the chest with a chair."...

At page 124 there are minutes of the interview of 13 August. The minutes show that Mr Lamb read the reports. In paragraph 2 the minutes record:

"Mr Coletta said the main reasons for his absences lately was due to problems with his girlfriend but they had now split up and the situation had caused him to have a bad late attendance record."...

Mr Lamb gave evidence to the Tribunal. He said at page 30 of the bundle:

"In the Applicant's case absence for domestic reasons not a good reason. The Applicant's girlfriend problem not sufficient for me not to dismiss. I believed the Applicant's absent record had been unsatisfactory for a long time but I did not feel at the end of the interview the Applicant had improved [there is then a sentence which is incomplete because the Chairman's Note itself was incomplete]."

Importantly on the following page 31, Mr Lamb said:

"We do not count domestic distress. [By which it is understood to mean as part of a sick absence period] I had to decide [and this is the important passage] whether it was right or not to take assault from girlfriend as a domestic distress. I decided not.

If 9 days sick leave because of the assault had been counted as domestic distress, then that left five days for tonsillitis. I would not then have dismissed the Applicant."

If the Industrial Tribunal had said that it did not accept that evidence, then the Appellant's position today would have been much weakened. The point is that their findings are in flat contradiction to the documents and to the evidence to which I have referred. I should say in passing that Mrs Pawson gave evidence to the Tribunal and at page 35 said:

"I took into account tonsillitis and myalgia. The gap of five months before myalgia and four months after tonsillitis without absence did not affect my view. I primarily looked to see if the original decision is correct. I see my role as going through that decision."

It is therefore plain from the evidence that consideration was given by Mr Lamb to the reasons for the absence during May 1991. As Counsel for the Applicant, the Respondent to this appeal, has properly conceded Mr Lamb had a discretion as to how he dealt with it. Can it be said that no reasonable employer would have taken the view which Mr Lamb did, confirmed as it was by Mrs Pawson on appeal? In our judgment the answer is clearly no. The Tribunal erred in making findings of fact contrary to the evidence and also plainly in our judgment in substituting its own view. Thus the basis of the decision is, with respect, plainly wrong. We have considered the question of remitting the matter to a freshly constituted Tribunal, but we have reached the conclusion that there is, in truth, no point. We would only think it right to remit if we could say that another Tribunal might properly reach the conclusion that the employers acted outside the bounds of what is reasonable, within the meaning of the authorities with which we are familiar. There is, we believe, no substance in the point concerning comparators. In the result it follows the appeal is allowed and the cross- appeal fails.