United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J SLATER (of Counsel) Instructed by Messrs Reece Davis Wood Wild & Co Solicitors White House 111 New Street Birmingham B2 4EW


 


MR JUSTICE HOLLAND: Mr John Regan was for a prolonged period of time in the employ of Magneti Marelli UK Ltd. His IT1 reveals the dates of his employment as being between 10 February 1969 and 21 May 1998. This matter was initiated by that IT1. It is dated 3 July 1998 and his complaint is of unfair dismissal and redundancy. In the event the matter came before an Employment Tribunal held at Birmingham on 14 December 1998. The unanimous decision of the Tribunal was that he had been fairly dismissed. Their decision was supported by Extended Reasons. Those were sent to the parties on 17 March 1999.

1. Against that decision, Mr Regan appeals to this Tribunal. That appeal has come before us by way of a preliminary hearing. It is our task this morning to decide whether the appeal raises an arguable point of law. If it does so then it is our duty to adjourn this appeal so that the matter may come back to this Tribunal when the Respondents of the appeal are represented. If, on the other hand, we can discern no such point of law, then it is our duty to say so and thereafter to dismiss the appeal. It must be appreciated that this Tribunal has its jurisdiction limited to points of law.
2. In the events of this morning we have had the assistance of a Skeleton Argument well prepared by Ms Slater, that Skeleton Argument in its turn supported by a helpful chronology. We are grateful to her and Mr Regan can be assured that the matter has been developed before us as well as it could be. The essential point that Ms Slater takes can be understood by the following short introduction to the circumstances of the case. The essential problem was absenteeism. The Extended Reasons record a history of absenteeism that was of some standing. Indeed it is noted that as long ago as July 1990 there was a verbal warning about this and thereafter at intervals there were verbal warnings and final warnings. The history is developed in the Extended Reasons. It is a prolonged history and that history also is set out helpfully in the chronology prepared by Ms Slater. There is no current need to develop the matter further to say in terms of detail save to take up the story at paragraph 14 of the Extended Reasons. The Tribunal having noted the earlier history of absenteeism then went on:

"There were then further absences from work commencing on 9 February and 24 April 1998, totalling 11 days. Given this significant non-attendance, following the final written warning of 21 October 1997, the Respondents commenced further disciplinary proceedings culminating in a disciplinary hearing on 14 May 1998 which resulted, as mentioned previously, in Mr Regan being dismissed with twelve weeks pay in lieu of notice. Mr Regan was unsuccessful at an appeal hearing, held on 21 May 1998, when his dismissal was upheld. The Tribunal were satisfied that these hearings and the investigation carried out were fair and thorough. Mr Regan was again represented and he was given the opportunity to make further representations. The meetings were fully recorded; Mr Regan was unable to give satisfactory assurances that his attendance record would improve. In such circumstances, the Tribunal decided that the Respondents had acted reasonably when determining that alternative employment was not a viable option, given the nature and the history of Mr Regan's absences, and the results of the investigation referred to."

In the next paragraph the Tribunal expresses its sympathy with Mr Regan given the prolonged period of employment, but directs itself that it has to have regard to the provisions of Section 98 of Employment Rights Act 1996 and this it underpins by setting out in full Section 98(4).

3. Then the comes the meat of the matter in paragraph 16 in these words:

"In reaching their decision the Tribunal concluded that this was a situation where several absences from work occurred due to a variety of symptoms, and that the Respondents were entitled to say, "enough is enough". Cases such as Rolls-Royce Ltd v Walpole [1980] IRLR 343 EAT, have established that, provided warnings have been given, the employee has been given the opportunity to make representations and there has been a fair review of the attendance record and the reasons for absence, an employer will be justified in treating such absences as sufficient reason for dismissing. The Respondents followed their grievance procedure meticulously and more than discharged their obligations in Mr Regan's case. The decision to dismiss was well within the range of responses which a reasonable employer could have made."

What then is said to be the basis for the appeal? Before the Tribunal, Mr Regan had been represented by Mr Powell of Counsel. Mr Powell drafted the grounds of appeal. The point he took, since adopted by Ms Slater, emerges from paragraphs 5, 6,7 and 8 of the grounds of appeal.

"5. The essence of the Applicant's case had two limbs, the first referred to the Appellant's attendance record as against the Respondent's work force average, the second referred to the Respondents policy and practice with regard to the Applicant."

4. In evidence, the Respondent's case acknowledged that the Applicant's absence taken over the period in question was slightly below the factory average. This was a primary submission on behalf of the Appellant. Further, it was submitted that this fact had never been apparent to the Respondent's manager until the Tribunal hearing, and that additionally connoted an unreasonable decision to dismiss. In paragraph 7 a submission was noted:

"a reasonable employer, acting fairly if they considered the absences of an employee over a period of several years, ought to compare his attendance with other employees, especially when there existed a factory "target percentage" and that over the period raised by the Respondents as relevant, the Appellant was absent slightly less than average.

8. Secondly, the Appellant was subject to an unfair procedure whereby the Respondent's effectively kept the Appellant on a "final warning" for poor attendance for a period in excess of two years. The warning letter stated that the Appellant faced disciplinary action if his attendance failed to improve and the improvement was sustained. Despite periods of sustained improvement. There was no variation or diminution of disciplinary action from the Respondent, which the Appellant averred was unfair in the context of a large scale employer such as the Respondent."

Those two points having been taken before the Tribunal; the complaint is that in the Extended Reasons the Tribunal failed to address either. Indeed it is entirely correct that neither such point emerges at all from the Extended Reasons.

5. The further submission is that Mr Regan was entitled to have those points specifically addressed in the Extended Reasons so that he would know the conclusion of the matter the views of the Tribunal about them. The argument then runs that given the failure of the Tribunal to address such points, there has been a breach of the duty put upon the Tribunal by way of Section 10(1) Tribunals Enquiries Act, 1992. It is further submitted lightly but firmly by Ms Slater that there has been a breach of the rules of natural justice. She puts it,"Mr Regan was entitled to know why he had lost."
6. In the view of this Tribunal, the force of these submissions must turn upon the weight of those two points. The reason why he lost could not have been set out more clearly by this Tribunal, in particular paragraph 16 which has already been cited in full in this judgement. Paragraph 16 does not stand alone; as was pointed out in the course of argument this morning, paragraph 9 includes a specific finding that "The disciplinary procedures adopted were detailed, thorough, and well documented." Against that background, the argument for the Appellant would only have weight if the points were so strong as to render those findings arguably perverse. Were that the case, then there would indeed be a basis for a view that the decision of the Tribunal was defective by way of law, in as much as it was only a decision that no reasonable Tribunal could have arrived at, given the weight of those two points, or, for that matter the weight either of them.
7. We turn therefore to the two points. In dealing with the first point. As was observed in argument, its weight is modest and if anything, counterproductive. If the record of absenteeism of Mr Regan compares marginally favourably with the general absenteeism record then perhaps it is arguable that this is a reason to take a strong line, rather than the reverse. But either way, whether or not that observation is well founded, it is plainly a marginal matter given the understandable focus of, first, the Respondents, and, second, the Tribunal, on the particular record of Mr Regan and that which occupied the disciplinary procedures that occupied the attention of the Tribunal. The same observation may be made about the second point then taken by Mr Powell. It is undoubtedly a comment that could be raised, but it is no more than that, and it is certainly not a matter which, in our judgment, could possibly raise an argument that failure to heed or deal with the point rendered the decision of the Tribunal arguably perverse.
8. It is to be observed, in fairness to the Tribunal, that the way they dealt with this matter involved them retiring at the end of the Applicant's case, and returning with seemingly such a clear view of the merits of the matter that they did not call upon the Respondent at all. This Tribunal is mildly critical of the failure to indicate that state of affairs in the Extended Reasons or to explain why that procedure was adopted. But it has this further implication that the two points taken were not the subject of further evidence from the Respondents and it may be, we know not, that it was in those circumstances that they did not feature in the Extended Reasons. Whether or not that is right, the crucial point is, are these points or either of them so strong that the failure to deal with them calls into question the whole basis of the decision? As is apparent, we cannot attribute to either point, or both points that weight, so that in those circumstances there is no point of law here. It is our duty to say so and thereafter to dismiss the matter notwithstanding the assistance of Ms Slater, for which we are grateful.