United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M MULHOLLAND (Of Counsel) Instructed by Farleys 22/27 Richmond Terrace Blackburn Lancashire BB1 7AQ
For the Respondent	MR G MANSFIELD (Of Counsel) Instructed by Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE PUGSLEY

1. The Applicant had been employed by the Respondents for a number of years from 1989 until 1999 as a process operator. It is quite clear that something had gone awry as far as he was concerned in terms of his ability to attend work. In 1997 of 228 working days available to him he was absent, with certified ill-health (often self-certified) for 72 days, that is to say 31.6% of the time. In 1998, out of 228 net available working days, he was absent for a total of 88 days, that is 38.6% of the time, and in 1999 out of 83 net available working days, he was absent for 32, that is 38.55% of the time. The Respondent employer summarised the position that over that period of time, (just over 2 years) the Applicant was absent on 18 separate occasions for 13 separate reasons. Some of the absences were recorded by the employers as absences without explanation. This was because of Mr Quick's persistent failure to notify the company at the commencement of the period of absence, and promptly within the appropriate time laid down the company's rules to submit either self certification or doctors' certificates. This had the result that sometimes he was shown as away for an unauthorised reason. In due course certificates – either self certificates or doctors' certificates were produced.
2. In 1997 the Applicant had a prolonged absence because of a back injury. Thereafter in 1998 the Respondent decided to treat the absences as a disciplinary matter. In May 1998, because of some absences, he received a written warning. There was a disciplinary meeting in August 1998 which warned him of "any other offence or repetition of the offence which led to his warning is likely to result in a further stage of disciplinary action."
3. There was a further disciplinary hearing in November 1998 when he broken a finger. He had received a final written warning on 5 November 1998. His record continued to be poor. He received notice of a disciplinary hearing in a letter of 1 March 1999. The meeting was convened and the Tribunal made various findings of facts about the circumstances. In the event his contract was terminated and further on 23 March an appeal was heard and the decision to dismiss was upheld. (It should be noted that there appears to be an error in Para 5 of the decision and it should read May 1998 not May 1999).
4. At paragraph 12 of the decision of the Tribunal says this:

"In this instance we find that the employer was not acting reasonably in treating the applicant's absences as a sufficient reason because the absences accorded with the employer's own procedure. The contract itself was accurately quoted by the applicant and it says (it appears in paragraph 11 on page 7 of bundle R1):

"The Company will have case to consider disciplinary measures if:

c) You are persistently late for or absent from work for reasons other than certified illness."

The applicant's absences were all by reasons of certified illness. In those circumstances the applicant's behaviour, however condign it may have appeared to this employer, was protected by that provision in the contract, it seems quite clear, and therefore it was unreasonable, the Tribunal finds for the employer to treat those certified absences as a reason for the disciplinary step ultimately of dismissing the applicant. We therefore find that the dismissal was unfair. We believe that this was, in fact, a capability issue or it was some other substantial reason which may have justified the dismissal. But, it seems to us, there is no basis upon which this employer could call it a conduct reason when that flew in the fact of its own procedure and its own contract."

5. Having come to that conclusion the Tribunal continue in paragraph 13:

"We have to consider the extent to which the applicant contributed to his own conduct. We have to consider whether or not we should reduce any basic award or any compensatory award in accordance with the respective principals in Section 122(2) and 123(6) of the 1996 Act. The respondent, we conclude, had here an employee who was aware of the system and who was taking advantage of it. As long as he certified his absences, they could be as long as he liked and he was immune from being subject to disciplinary measures. That does not seem to us to reflect upon the applicant nearly as badly as it does upon the employer who allowed the situation to continue and who failed to address it properly. We therefore do not believe that this is an appropriate case to make any reduction in respect of any conduct on behalf of the applicant."

6. The Tribunal then went on to quote the well-known case of the House of Lords in Polkey v A E Dayton Services [1987] IRLR 503. What they said was this at paragraph 14:

"This was undoubtedly a flawed procedure. Undoubtedly the dismissal procedure was not properly conveyed and Mr Slater, it must be said, did not properly conduct it.

We therefore consider what would the outcome have been had the employer adopted a proper approach to this whole case, treated it as a capability issue or a potential dismissal for some other substantial reason under Section 98(1) and what the outcome would have been if that had been done. We conclude that had it been done and addressed properly, the employer would have made proper enquiries through its own medical occupational health advisers to obtain a report. That report might have told them either that the applicant, sadly, was suffering from an illness or a combination of illnesses or a succession of illnesses which meant that his future occupation with them was always going to be in doubt or it might tell them that the applicant was simply "trying it on", and he was taking advantage, whenever he could, of any opportunity for absence in order to avoid work. In either of these events, it seems to us, the employer would have had adequate justification to terminate the applicant's employment. However, there is no doubt that it would have taken the employer up to, we gauge, four weeks in order to put himself in a proper position to deal with that case appropriately and with impunity.

We therefore find no reason to reduce the basic award to which the applicant is entitled."

7. They then go on to calculate it. They then noted that the applicant sought an order for reinstatement and the Tribunal thought it would be wrong to consider that and the Tribunal therefore decided to limit his compensation order to the 4 weeks' net pay which he would have enjoyed "had the employer conducted the matter in accordance with Section 98 and an appropriate procedure and that order was limited to the sum of £760.00" (para 17).
8. Not altogether surprisingly if we may gently say so, we have two appeals, an appeal by both employee and employer. The appeal by the employee complains as to the way in which the Tribunal have limited the compensation and the appeal by the employer against the finding of unfair dismissal.
9. May we take the appeal by the employee first and say this. It does not seem to us inherently wrong to adopt the approach sometimes adopted in redundancy cases such as Abbotts v Wesson-Glymwed Streets Ltd [1982] IRLR 51. In that case the compensatory award was limited to the time consultation would have taken because the tribunal made the finding the applicant would ultimately have been dismissed. We think that is very much a matter for each Tribunal to consider but we do consider that there ought to be clear evidence as to why this approach is being taken. We do think that the Tribunal adopted a somewhat speculative approach in the absence of clear evidence.
10. Having said that it is common ground by both parties, including the Respondent who appears in the form of Mr Mansfield that if his cross appeal succeeds then is inevitable the Tribunal untrammelled by any findings of fact of the first Tribunal will have to determine compensation afresh. We allow the Appeal, in that it is relevant, because in our view we have no alternative but to allow the Respondent's cross appeal on the subject of whether or not there was an unfair dismissal.
11. We have been able to deal with this matter considerably more quickly than otherwise be the case because the parties have on both sides been most helpful. First they have drafted careful and comprehensive skeleton arguments. That often happens, but if we may say so without being too offensive, they have done something else. Their arguments have followed their skeleton argument. So often one has an extended skeleton argument and a rather different oral argument.
12. The reality is as the Tribunal found that this level of attendance was appalling. But we consider that the decision of unfair dismissal is fundamentally flawed.
13. Where the Tribunal, if we may say so, were in error is that the Tribunal did not look at what the set of facts were but limited itself to say "Ah! The Employer regarded this as misconduct.' It was not misconduct. Therefore it was unfair." We do not think that is an unfair account of their reasoning as contained in the decision.
14. We think that paragraph 12 contains a fundamental miscorrection of law and inconsistent with the case of Abernethy v Mott, Hay and Anderson [1974] ICR 323:- "A reason for the dismissal of an employee is a set of facts known to the employee, or it may be beliefs held by him, which causes him to dismiss the employee." Per Cairns LJ. We are fortified in our view by the judgment in the case of Wilson v Post Office Court of Appeal Civil Division heard on 26 May 2000 now reported in the IRLR at 12 December 2000 834 and also a decision of another division of this Tribunal Tibbett and Britain Group Plc v J F Davies a decision now presumably obtainable on the Website. We have also been referred to the case of International Sports Co Ltd (1980) IRLR 340. In this case the Tribunal failed to ask themselves the fundamental question "What is the employer's reason for dismissal and having regard to that reason was it fair to dismiss having regard to the criteria set out in section 98(4)?" As His Honour Judge Paul Collins said in the case of Tibbett & Brittan Group Plc v J F Davies at paragraph 14:

"An employer is perfectly entitled to dismiss an employee who has been frequently absent for medical reasons over a significant period of time whether or not the employee is in any way at fault of the absences provided the employer has carried out a proper procedure including warning counselling."

15. We accept the point made by Mr Mulholland for the Appellant that how the employer categorises his reason may be important. If an employer categorises the reason as conduct and only invokes a disciplinary procedure that could be very unfair to the employee if, on its true construction, it is a matter of capability or some substantial other reason. But the Tribunal made no finding at all as to whether or not the way in which the Respondent employer dealt with this matter was, or was not, fair having regard to what the true reason was for the dismissal rather than the legal label which the employer attached.
16. We consider the Tribunal adopted a totally legalistic way in paragraph 12 and that they should have asked themselves what was the real reason, for the dismissal and then go on to ask themselves was it fair to dismiss in the light of that reason. The categorisation of the reason is "simply a piece of nominalism" – see Buxton LJ in Wilson v Post Office. A fundamental misdirection causes us to allow the cross appeal because the tribunal asked themselves the wrong question and approached the case on a semantic basis. We have been invited by Mr Mansfield to declare the dismissal fair. That would be totally wrong. We believe this matter has to be considered by a new Tribunal afresh. We consider we should follow the decision of the Court of Appeal in Wilson v Post Office [2000] IRLR 834 on this aspect of the case.
17. In a nutshell the Tribunal misdirected themselves as though in some way they had to follow the employer's categorisation of the reason for dismissal. There may be circumstances where if an employer does categorise in particular way that may have adverse consequences on the fairness of the decision. The Industrial members want to make this very clear that when an employer is confronted by a problem like this you approach it as a human problem with its own facts. You do not rigidly categorise it in your mind as being a case of conduct/capability or substantial other reason. You look at it as a real problem and you adopt a procedure which is flexible, firm and fair in the light of the particular employee and the policy of the employer as set out in their relevant procedures. Employees are not absent from work for necessarily for some simple obvious reason. There is a duty on the employer - and on the employee - to try and sit down and discuss the problem of which the medical aspect may merely be a symptom of a much bigger problem. It is trite to say that there are many circumstances in industrial life in which re-organisation changes can produce considerable amount of sickness and ill health absence for a particular period. We allow the appeal and it is common ground that the cross appeal hangs on this and we direct that it be heard by afresh and before a different Tribunal.
18. There are other ways to resolve a dispute than litigation. We bear in mind the proportionality of human cost and effort and money in relation to the overall likely monetary gain or loss. Whether the parties can resolve this case by settlement is a matter entirely for them.