United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this preliminary hearing was to determine whether the applicant/appellant has any arguable point of law in an appeal which she wishes to make against the unanimous decision of an Industrial Tribunal which dismissed her complaint of unfair dismissal which she had brought against her former employers, the Post Office.

The applicant commenced her employment on 19th June 1989 and at a very early stage in her employment, whilst moving some sacks of mail, she apparently hurt her back. Thereafter, she had many days off work in 1989,1990 and 1991, presenting medical certificates which variously referred to her back pain, or thoracic back pain or acute back syndrome.

On 17th October 1994 the applicant collapsed at work and was taken to hospital. She said that her back had given way whilst she was pushing a skip. She was seen by the employer's Welfare Officers and Occupational Health Service on numerous occasions, but her request that she should have a career break which she made in February 1995 was refused.

The Industrial Tribunal found at paragraph 2(f) that:

"... On 30 October 1995, the occupational health adviser reported that her GP had written to her stating that she had back problem and domestic problems because her husband was seriously ill in Nigeria and she had five children to care for her [sic]. Her GP recommended that she be offered light work, because of her back, and that she be moved to a night shift, because of her childcare problems."

On 7th November 1995 she was given a formal warning about her poor attendance. On 18th December 1995 the Post Office's Area Medical Adviser noted that the applicant's GP had confirmed that she did have back problems and asked if she could turn to light work and then to full duties after a month. The doctor also referred to her request to work a late night shift.

After various attempts to discuss matters with the applicant, her manager wrote to her on 11th April 1996 saying:

"Your continuing absence is considered to be a clear statement that you are unable, or unwilling to provide the regular and reliable service required of a Royal Mail Employee. You are therefore now given this opportunity to submit in writing any reasons you may have as to why your services should not now be terminated on the grounds of inefficiency arising from unsatisfactory attendance. Alternatively, you may request a personal interview, accompanied if you wish by a colleague who may be your staff representative."

Following the applicant's response in writing to that letter, a meeting took place on 24th April 1996. There was a dispute between the parties as to what was said at that meeting. The tribunal found as a fact that the applicant asked for further leave of absence to enable her to visit her brother or sister in the United States of America in July 1996 for three months so that she could obtain private medical treatment there for her back, the cost of which would be funded by her family. She was asked if she could give a specific date for her return to work but the tribunal concluded that she said she was unable to do so as she did not have the gift of foresight.

By letter dated 8th May 1996 the applicant was given 12 weeks notice of termination of her employment on the grounds of inefficiency arising from her unsatisfactory attendance.

An internal memorandum disclosed by the respondents revealed the state of mind of the manager at the time. He wrote:

"I have had great difficulty in believing Mrs Okadigbo, she has not co-operated with any of the Back to Work procedures or the Third State interview, of the return of papers within deadline. In fact, she has sought to delay at every turn the investigation of her particular case. I cannot find it in myself to believe Mrs Okadigbo's claim that she will, one day, be able to offer a satisfactory attendance pattern. Therefore she must be considered either unable or unwilling to attend for work on a regular basis. My decision, therefore, is to terminate her services on the grounds Inefficiency Arising from Irregular Attendance."

An appeal against her dismissal was held on 31st May 1996. It was adjourned for further investigation. A report from the applicant's GP was solicited. He said that she could return to work but that she needed to do light work and he thought the reason she had not already returned was that light work had not been made available. It was the manager's position that the request for light work was considered by him but as no work of the kind undertaken by the applicant was carried out on the night shift, the Post Office could not agree to her request. But he did indicate to her that for the short periods when lifting of mail sacks was necessary, help would be provided. The appeal was dismissed.

The Industrial Tribunal concluded that the dismissal was fair for reasons set out in paragraph 4 of their decision.

(1) They noted that the applicant had been on continuous sick leave for a period of nearly 19 months and that the continuous period of absence up to the date of dismissal was nearly 22 months.

(2) They noted that she was provided with the professional services of a Welfare Officer and they concluded that the employers had provided her with reasonable help and advice during the long absence.

(3) They were of the view that the Post Office's attitude to her request for alternative employment was reasonable, having regard to the offer of assistance for her during the short periods in her normal duties when lifting was required.

(4) They concluded that the Post Office were reasonable to reject her request for a transfer to night shift work.

(5) They noted the fact that during her period of absence the employers had to cover her duties by the payment of overtime and that was a factor which the Post Office reasonably could take into account in deciding whether to dismiss.

(6) They noted that the applicant was not able at any time to provide an indication as to a possible date of a return to work.

(7) They concluded that the procedure which was adopted leading up to the dismissal was fair.

The Employment Appeal Tribunal can only interfere with a decision of an Industrial Tribunal where there has been an error of law.

It was argued before us on the appellant's behalf that there was no genuine consultation process prior to the dismissal. It was argued that the finding made by the tribunal that she was unable to give any indication of a likely date for her return to work was contrary to the evidence which she gave that she was able to return to work immediately if her request for redeployment to a light duty was agreed.

We have to say that we do not regard that as a point of law. The Industrial Tribunal gave careful consideration to the question as to whether the employers were acting reasonably in relation to her request for a transfer to light work during a night shift. They found that the employers had acted fairly in that regard. That was a judgment for the Industrial Tribunal and being a question of fact is not a judgment with which the Employment Appeal Tribunal can or should interfere.

The second argument on behalf of the appellant was that effectively there was no evidence that the employer made any attempt to discuss redeployment to a light duty on a day shift with the appellant. In other words, even if the employers may have been entitled to dismiss her request for redeployment to light duties on the night shift on the basis that there were no such duties available, it was nonetheless their duty to investigate the possibility of there being light work available during the day shift.

Again, with respect, it seems to us that point is not an argument of law. The Industrial Tribunal have rejected that contention in their finding that the employers were entitled to conclude that she did not need light work during the daytime, bearing in mind the assistance that was available to her during her turn of duty. It seems to us that whether or not we agree with the tribunal's conclusion we cannot categorise it as an error of law. It was a judgment by them on the facts.

The final point relates to a feeling of unfairness which the appellant has about the tribunal proceedings. English is not her first language. She did not fully understand the procedures of the Industrial Tribunal or the significance of certain issues. She was handed, immediately prior to the hearing, a bundle of documents on which the employers were intending to rely and she really had not opportunity to read or consider their contents before the case started.

This is not a case, in our judgment, where we are left with any feeling of unease about what occurred in the Industrial Tribunal room. That said, it seems to us to be unfair and undesirable in principle for an unrepresented applicant to be presented on the day of the hearing with a bundle of documents. It is our experience that many unrepresented litigants are agitated at the prospect of appearing in a strange environment. In such a state, they are not best able to absorb detailed material, which trained Counsel might have no difficulty in absorbing in the few minutes before a case commences. But there is no evidence that she raised any complaint about this at the time and we do not consider that this provides a proper ground for an appeal to us. The tribunal approached this case with great care as is evident from the extended reasons which they have given for their decision.

Accordingly there not being any arguable point of law raised by the appellant in her Notice of Appeal, as elaborated before us, the appeal must be dismissed.