United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N NICOL (of Counsel) Messrs Lomax Lloyd-Jones Solicitors 204 Old Kent Road London SE1 5TY
For the Respondents	MR D HOOPER (of Counsel) Instructed by: The Solicitor London Borough of Hackney 298 Mare Street London E8 1HE


 


JUDGE PETER CLARK: This is an appeal by Mr Ojobaro, against a decision of the Stratford Employment Tribunal, promulgated with extended reasons on 21st August 1997, dismissing his claims of unfair dismissal, pay in lieu of notice and non-payment of wages against his former employer, the London Borough of Hackney ["the Council"].

The appellant commenced his employment as a Block Receptionist in December 1991. He was dismissed with immediate effect by a letter dated 25th July 1996.

The Council operated an unauthorised absence procedure. That written procedure provided for a letter to be sent by recorded delivery seven days after the beginning of a period of continuous absence, requiring the employee to contact the respondent or return to work. If no response is received a further letter is to be sent by recorded delivery six days later, warning the employee that unless the Council hears from him within three days of the day the letter is received, the contract will be brought to an end. If no response is then received a letter of dismissal is sent. If contact is made within time, the employee may be dealt with under the Council's disciplinary procedures which involve a disciplinary hearing and, if necessary, a subsequent right of appeal. No such hearings are provided for in the Unauthorised Absence Procedure.

The factual background to the dismissal was as follows. The appellant took authorised leave on 20th May 1996. He was due to return to work on 1st July.

During his leave he went to Nigeria. It was his evidence, not so far as we can see rejected by the tribunal, that he was taken ill in Nigeria on 27th June, causing him to be hospitalised. He asked a friend to contact the Council by telephone. The friend was unable to do so. The appellant obtained a medical certificate from the hospital in Lagos dated 1st July, certifying him as unfit for work for four weeks. He arranged for the certificate to be sent to the Council by Federal Express. The covering letter from his friend, Adebayo Apena, to Noreen Meade of the Council is dated 7th July. It was not delivered and returned to Mr Apena on 15th July. A further letter dated 20th July 1996, enclosing a copy of that medical certificate was sent to the Council by Mr Apena. That letter and copy medical certificate arrived, the Council accepted, on 26th July.

Meanwhile, unaware that the appellant had gone to Nigeria, or that he was ill, the Council put into operation the unauthorised absence procedure. First, they sent a letter dated on the face of it, 11th June, but corrected to 11th July, to his home requiring him to return to work or contact his line manager by Tuesday, 16th July. That letter appears from its envelope to have been sent recorded delivery on 15th July. No reply having been received the Council wrote a second letter dated 18th July, informing the appellant that unless the Council heard from him "within three days of the day this letter is received" his contract would be brought to an end.

It appears from the envelope produced by the appellant in evidence that that letter was sent, ordinary post on 22nd July.

On 25th July, no contact having been made by the appellant, the Council wrote to him terminating his employment with immediate effect.

On 26th July the Council received the July medical certificate.

On 2nd August 1996 Mr Apena sent a further letter to the Council enclosing a further four week certificate taking effect on 1st August.

On 7th August 1996 the Council wrote to the appellant informing him that the notification of sickness arrived after the decision to terminate his employment owing to his long and unacceptable period of unauthorised absence. There was no reason to alter that decision.

The appellant completed his hospital treatment on 22nd August. He returned home on 3rd September, when he discovered the various letters from the Council to which we have referred. On 21st October he presented his Originating Application.

The tribunal decision

The principal point taken below on behalf of the appellant, recorded at paragraph 8 of the tribunal's reasons, was that dismissal was unfair because the letter of 18th July was not posted until 22nd July and on 26th July, which must have been within three days of its arriving at the appellant's home, the Council received a medical certificate from him.

The tribunal found that the reason for dismissal was the appellant's unauthorised absence. That is a reason going to his conduct.

As to reasonableness under s. 98(4) of the Employment Rights Act 1996 the tribunal dealt with the appellant's case on fairness in this way. First, they accepted that the letter may not have been sent until 22nd July. That is not a clear finding on the face of their reasons. The Council called a Mr Nzekwue to give evidence. He was the senior personnel officer who was responsible for dismissing the appellant by the letter of 25th July.

Mr Nzekwue told the tribunal that he thought the letter was posted on 18th July. The tribunal held that Mr Nzekwue believed that it had been sent on 18th July and it was his state of mind which mattered, accepting a submission made by Mr Hooper on behalf of the Council. In any case, said the tribunal, any delay in receipt of the letter made no difference to the appellant because he was not there to receive it.

The tribunal concluded that the Council's procedures were reasonable; dismissal after 25 days' absence was reasonable. A fair decision to dismiss on 25th July was taken. The arrival of the medical certificate on 26th July did not provide cause to alter that decision. The dismissal was fair.

The Appeal

Mr Nicol submits that the tribunal fell into error by failing to make a necessary finding of fact as to whether or not the Council were in breach of their own procedure. There is further, no finding as to whether or not the procedure was contractual.

Instead the tribunal took into account two irrelevant considerations. First, that Mr Nzekwue believed that the letter of 18th July was posted on that date and secondly, that any delay in receipt of that letter made no difference to the appellant because he was not at home to receive it.

On the evidence, submits Mr Nicol, the tribunal was bound to conclude that the letter of 18th July was posted on 22nd July and thus the Council received the medical certificate within three days of the appellant's constructive receipt of that letter. Had the procedure been properly applied, the appellant would not have been dismissed under the unauthorised absence procedure, but would have had an opportunity to state his case under the ordinary disciplinary procedure at an initial hearing and, if necessary on appeal. The failure to provide a right of appeal underscored the unfairness of the dismissal in these circumstances.

In support of his submissions he referred us to the Court of Appeal decisions in Stoker v Lancashire County Council [1992] IRLR 75 and Westminster City Council v Cabaj [1996] IRLR 399, in both of which cases the Court held that a failure by the employer to observe a contractual disciplinary procedure, which was not recognised by the tribunal below, vitiated the finding of fair dismissal in each case. Both cases were remitted for rehearing.

He also draws attention to the proposition set out in the judgment of Wood J in Whitbread v Mills [1988] IRLR 501, at paragraph 40, where he said:

"... Where there is a contractual appeal process a Tribunal will no doubt ask itself, had the employer carried it out in its essentials? (Minor departure may in some cases be ignored.) Total failure to do so may entitle a Tribunal to find that the dismissal was unfair - it does not necessarily follow that it should do so. Even though there is no contractual appeal process provided for, it may nevertheless be reasonable for some form of appeal to be arranged by an employer as encouraged by the code of practice; ..."

Wood J then refers to a passage in the speech of Lord Bridge in the case of West Midlands Co-operative Society Ltd v Tipton [1986] IRLR 112.

On the question of the ACAS Code Mr Nicol points out that paragraph 10(k) of the Code on Disciplinary Practice and Procedure provides that disciplinary procedures should provide a right of appeal and specify the procedure to be followed.

In Lock v Cardiff Railways [1998] IRLR 359 this tribunal, presided over by Morison P, reversed a finding of fair dismissal by a tribunal which had not considered the ACAS Code, although not cited to it, wherein it is provided that, except for gross misconduct, no employee should be dismissed for a first breach of discipline.

Mr Nicol submits that the absence of a right of appeal was particularly significant in this case, where the unauthorised absence procedure did not allow for a disciplinary hearing, Further, this procedure differs from the Council's ordinary disciplinary procedures which do incorporate those procedural steps.

In response, Mr Hooper reminded us that the question for the tribunal was whether the employer acted reasonably in treating the reason for dismissal, here unauthorised absence for 25 days and that going to the employee's conduct, as a sufficient reason for dismissal. They took all relevant matters into account and, he submits, reached a permissible conclusion.

On the question of breach of procedure, he accepts that the tribunal avoided making a specific finding as to whether or not a breach had occurred for the reasons which they gave. Whilst not conceding the point as a matter of fact he recognised his difficulty in contending that no breach had occurred in circumstances where the medical certificate arrived at the Council within three days of the appellant's constructive receipt of the letter, assuming that it was in fact posted on 22nd July. He accepted that Mr Nzekwue's state of mind was not relevant to the factual question as to whether the Council were in breach of their procedure.

Conclusion

We accept Mr Nicol's submission that this tribunal fell into error. On the authorities they were bound to make a finding of fact as to whether or not the Council were in breach of their unauthorised absence procedure, and whether that procedure was contractual. The reasons given for not making that finding were, in our judgment, immaterial.

Such a finding was necessary in order properly to judge the overall reasonableness of the decision to dismiss. A breach of procedure will not inevitably lead to a finding of unfair dismissal. see Cabaj. In these circumstances we have concluded, although urged by Mr Nicol to decide the matter ourselves, that the proper course is to allow the appeal and remit the whole matter for rehearing by a fresh tribunal, which will be free to make all necessary findings of fact in order to determine the question of reasonableness under s. 98(4) of the 1996 Act and the other claims before them.