United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the Bristol Industrial Tribunal sitting on 12 September 1997 against that Tribunal's decision to dismiss his complaint of unfair dismissal against his former employer, the Respondent, Celcon Blocks Ltd. Extended Reasons for that decision are dated 25 September 1997.

The facts as found by the Tribunal were these. The Appellant was employed by the Respondent as a process operator from 18 April 1994 until his dismissal effective on 30 May 1997.

Over those three years of employment the Appellant clocked up a total of 23 absences from work, being a mixture of self-certificated sickness absences and unauthorised absences. He received one verbal warning and two written warnings for unauthorised absences and one verbal warning for sickness absence. In addition his shift manager had spoken to him on a number of occasions about taking odd days off and failing to advise him that he would not be at work.

The second written warning was issued on 5 February 1997. On 20 February the Appellant was absent from work and never returned before his dismissal. On 27 February the Respondent received a sick note citing depression and stress. They obtained a medical report from his doctor with the Appellant's consent, indicating that his depression had been increased by work pressures.

On 7 May the Works Manager wrote to the Appellant inviting him to a meeting on 22 May to discuss his health. The Appellant did not attend. As a result the Respondent wrote to him on the following day in these terms:

"I was extremely disappointed that you failed to attend the meeting arranged for yesterday as outlined in my letter of 7th May 1997. The [sic] hear, via the T.G.W.U. Senior Steward, that you had arranged an appointment with your Doctor and so could not attend shows a lack of understanding of who employs you.

On the basis of both your response to the request to attend for interview and that you went sick only 2 weeks after a written warning for poor attendance was issued, I can see no point in continuing through the formal disciplinary procedure.

I therefore give you one week's notice of termination, your employment ceasing on 30th May 1997."

Against his dismissal the Appellant appealed, with the assistance of his Trade Union district official. Following a hearing before the Respondent's General Manager, held on 4 June, his appeal was dismissed.

The Appellant accepted in evidence that he realised his job was on the line when he went to his doctor for a blood test on 23 May instead of keeping the appointment made by his employer.

It was his case before the Industrial Tribunal that the Respondent had failed to follow their own procedures. In particular the second written warning dated 5 February referred to his being at risk of a final written warning in the event of a failure to improve. Secondly, he claimed that under the Respondent's disciplinary procedure the earlier warnings were spent by the time he was dismissed.

The Tribunal found that the Respondent had made out a potentially fair reason for dismissal based on the Appellant's conduct, namely persistent absences, both through sickness and unauthorised absence. The Tribunal refer to a mixture of capability and conduct and we infer that the Tribunal found that the principal reason for dismissal related to conduct.

As to reasonableness under Section 98(4) of the Employment Rights Act 1996 the Tribunal found that the dismissal was fair. Although critical of the way the Respondent had operated their disciplinary procedure the Tribunal were satisfied that the Appellant had been adequately warned as to the consequences of his continued absences from work. He had adequate opportunity to make representations, particularly at the appeal hearing.

They finally concluded that, having regard to equity and the substantial merits of the case, the Tribunal were satisfied that the Respondent acted as any reasonable employer would have done in all the circumstances.

Now there is an appeal and Mr Linden takes essentially two points in support of the appeal at this preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go to a full appeal hearing.

First, he boldly submits that this Tribunal was bound to find that the dismissal was procedurally unfair. He points to the following factors. First, that on 5 February when issuing a written warning the Respondent stated that the likely consequence of further misconduct or insufficient improvement is a final written warning.

Secondly, he points to the fact that the Appellant was absent from work from 20 February and that the meeting arranged for 22 May was to discuss the Appellant's health and any possible influence that his work may have on it. It was not a disciplinary hearing.

Thirdly, he points out that the Appellant had, through his Trade Union representative, told the employer that he was unable to attend on 22 May due to a doctor's appointment, only then to find that he was dismissed without a hearing, contrary to the Respondent's own formal disciplinary procedure.

We have considered this submission and we reject it. Ultimately, the question for the Industrial Tribunal is whether or not the employer acted reasonably in treating a potentially fair reason for dismissal as sufficient to dismiss the employee.

Mr Linden has referred to the judgments of the House of Lords in the case of Polkey as to the need for procedural fairness. We fully appreciate and apply the sentiments expressed in the speeches in that case, but we do not understand their Lordships to have been saying that any procedural unfairness will automatically lead to a finding of unfair dismissal. On the contrary, both Lord Mackay of Clashfern and Lord Bridge of Harwich, in the course of their speeches, were at pains to point out that where it would be a futile exercise to go through the full procedure before dismissing an employee, in those circumstances the dismissal will not necessarily be unfair.

We have considered the facts and circumstances and the background in this case and we think that this Industrial Tribunal was entitled to conclude that these Respondents acted as a reasonable employer would have done in all the circumstances. That is ultimately the test and one which, in our view, this Industrial Tribunal decision passes.

The second point is that there was some confusion in the Tribunal's approach to the reason for dismissal set out in paragraph 8 of the reasons. We have indicated earlier in this judgment that we think that the Tribunal recognised that the employer's reason, for the purposes of Section 98, involved a mix of both capability and conduct, but that the principal reason related to the Appellant's conduct.

In our view the critical question is whether or not the Tribunal has properly identified the reason for dismissal and whether that is a potentially fair reason. We think they did and it was.

In all the circumstances we think there are no proper grounds for permitting this appeal to succeed further and accordingly, we shall dismiss it at this stage.