United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C BOURNE (of Counsel) Messrs Pattinson & Brewer 1 Bridge Street York YO1 6WD


 


RECORDER BURKE QC

1. Mr Morris appeals from a decision of the Employment Tribunal sitting at Liverpool, chaired by Mr Read, promulgated on 11 February 2000 with extended reasons. By that decision the Employment Tribunal dismissed Mr Morris' claims against his employers Freighliner Ltd for unfair dismissal and dismissal for Trade Union reasons.
2. Mr Morris was a long-standing employee of the employers at their depot at Garston, he was a working Foreman, and he was also a Lay Trade Union Official. The Terminal Manager, who was the only witness on behalf of the employers before the Tribunal, was Mr Lancake.
3. There was an elaborate procedure called Managing for Attendance Procedure which dealt among other things with irregular attendance. We have not been told whether or not it was contractual, we anticipate that probably was; and it would not matter in any event for present purposes whether it was or was not.
4. It provided, so far as is material at present, for four stages of warnings at stages one and two, a final warning at stage three and dismissal as a potential sanction at stage four. It operated in this way; when a warning at each stage of the procedure was given that warning would be given for a specific period; if there were further absences during that period then subject to provisions as to the nature and length of number of those absences, those further absences would trigger a move to the next stage. If, however, there were no further absences or no further sufficient absences during the period of a particular stage of warning, then there was no trigger for moving on to the next stage and the most that could happen would be that those further absences could lead to a further warning at the same stage.
5. Mr Morris had a poor attendance record. In November 1996 and August 1997 he received stage one warnings under the procedure which I have described. In November 1997 and April 1998 he received stage two warnings.
6. In July 1999, shortly after he had spent a very considerable time on his Trade Union duties, in the course of painful negotiations with the employers, he received a final warning under stage three of the procedure. We have not seen the procedure, but it appears to have been not in dispute before the Tribunal that, when the stage three warning was given in July 1999, the stage two warning had expired. The giving of a stage three warning, when it was given, was, to use an expression often used in industrial circles, 'out with the procedure'.
7. The establishment of these various stages is a familiar matter in industry; it enables the employer and the employee to know where they are and an employee who knows that the time for which a warning will endure, so as to enable the employers to move on to the next stage, has expired may behave differently as compared to how he might behave in terms of making efforts to ensure that he is in work if he knows that that time has not expired.
8. During the 52 week period of the final warning there were further absences.
9. Earlier in the history a medical report had been obtained from an Occupational Health Adviser who said that Mr Morris was suffering from stress, which was work related but which did not impair his performance of his work.
10. In September 1999 Mr Morris was absent for about eight days. There appears to have been a medical certificate which related his absence to a chest infection, but, as is common in procedures such as that involved in this case, the fact that the absence was certificated did not mean that it was not an absence for the purpose of the procedure, that is because with irregular attendance there comes a time, whether the absence is certificated or not, when the employer is entitled to say enough absence is enough irrespective of the reason for the absence. As a result of the eight days of absence in September 1999, Mr Lancake dismissed Mr Morris, and it was in respect of that dismissal that these complaints were brought. The Tribunal found, despite material to which they expressly refer in their decision which undermined or tended to undermine the credibility of Mr Lancake, that the dismissal was not motivated by considerations of the part he had played in the recent negotiations or by motives which related to Mr Morris' trade union activities. Despite the problems which they enumerated in their decision, the Tribunal believed him and accepted that he had dismissed Mr Morris because of the latest absence in the context of a very long list of absences and not because of Mr Morris' trade union activities. As to unfairness, the Tribunal decided that Mr Lancake, despite the criticisms made of him, had acted reasonably in proceeding on the basis that Mr Morris was under a final warning and that Mr Lancake had acted reasonably in dismissing him having taken into consideration as Mr Lancake said he did, Mr Morris' twenty three years service.
11. There were six grounds put forward in the Notice of Appeal to which Mr Bourne, on behalf of Mr Morris, this morning has added a further ground. The first ground is that, at paragraph 10 of the decision, the Tribunal correctly recorded the fact which was not in dispute, as I have already said, that the stage three final warning was out with the procedure because the time for which the stage two warnings could endure had elapsed before the stage three warning was given. That employers had given this warning when the procedure did not apparently provide for it was an important matter in the Applicants case. He relied on that both as one of the factors indicating an improper motive in Mr Lancake's mind and also in the alternative indicating unreasonableness.
12. At paragraph 25, however, the Tribunal faced this about the circumstances of the final absence: -

"Against this, however, we set this simple fact: the procedure laid down for dealing with absences provided for trigger levels for the next stage in procedure and the relevant level had been achieved, leading to a Stage 4 meeting."

13. That appears to be a conclusion expressed by the Tribunal that all the trigger levels had been properly met, including the trigger level for the giving of the stage three final warning which was itself a pre-condition to stage four. Thus, there appears to us to be a contradiction between what the Tribunal was saying at paragraph 10 and at paragraph 25 or at least (and this is as far as we need to go for present purposes) arguably such a contradiction. This appears to us to be arguably a contradiction on a matter which could have had substantial bearing on the Tribunal's overall view, both as to trade union reasons (although we have to say we very much doubt whether it would have had such an effect) and, perhaps with greater degree of potential, some bearing on the issue of reasonableness. Without saying more about it, for those reason we think that there is an arguable ground of appeal set out in ground one of the notice of appeal and that ground of appeal should go to a full hearing.
14. However, we take a different view about the other grounds of appeal which have been put forward. The second ground of appeal comes to this, that the Tribunal failed to make a finding of fact as to whether the giving of the written warning in July 1999 under stage three was of itself with an improper motive. We do not regard this as an arguable ground.
15. At a later stage of his arguments Mr Bourne argued that the Tribunal was obliged to take a view overall of all the matters which were alleged to support a case of acting on the basis of improper motive, and no doubt the argument would be the same in relation to unreasonableness, and to express an overall finding. We agree that the Tribunal was obliged so to do as indeed is expressed although wholly difficult context by this court in the case of Qureshi -v- Victoria University of Manchester to which we have been referred in the form of a transcript of a judgment delivered here on 21 June 1996. We will come back to whether that overall judgment was or was not satisfied in this case when we come to deal with the particular ground of appeal to which that point is relevant.
16. What Quereshi tells us, in a case to which Quereshi applies, is that it is not necessary for the Tribunal to go through each matter which is raised as indicating an improper motive or unreasonableness and make a specific determination as to whether there was improper motive or, for that matter, unreasonableness in individually in the case of each matter; we do not think that it was necessary for the Tribunal to do that in this case; and therefore ground two appears to us to be unarguable. That does not detract from the possibility that if the Tribunal had approached the validity of the final warning on the basis set out in paragraph 10 as oppose to paragraph 25, it might (and it will be for somebody other than us to consider whether it would) have come to a different conclusion.
17. In paragraph 3 of the Notice of Appeal it is said that the Tribunal erred in referring to the fact that the final absence of eight days was longer than a short-term absence and was covered by a medical certificate as not being an especially important consideration. Mr Bourne, very sensibly and fairly, conceded that, in effect, this ground was a perversity ground. In our view it was entirely up to the Tribunal to make up its own mind as to how important it thought those matters were and there is no arguable ground for appeal in respect of the conclusion it expressed on those matters. It dealt with them at paragraph 27 in our judgment in a satisfactory way.
18. Ground four relates to the credibility of Mr Lancake. What is argued is that Mr Lancake's oral evidence was found to have contradicted his witness statement. The Tribunal found that, when Mr Lancake reached the conclusion that the Applicant's final absence was not stress related, he had no evidence to support that conclusion (see paragraph 23 and 24 of the decision). However, the Tribunal was alert to those points and dealt with them. It cannot be said that it had forgotten them or got them wrong; and the Tribunal was entitled, it was its function indeed to reach a view as to his credibility bearing those points in mind, as if they plainly did. We see no ground of appeal here either.
19. Ground five I need not refer to individually, as Mr Bourne has accepted that in effect it is covering the same territory as ground four. In ground six of the original notice of appeal, (and I say original because the additional ground Mr Bourne has put forward to us is numbered as six, rather than seven, making the original six seven) attention is drawn to paragraph 28 of the decision where the Tribunal said that Mr Morris had made it clear at the meeting that he considered the final absence was not stress related, and that it did not appear that that view was ever countered or contradicted by Mr Morris or his representative. The argument is that that paragraph appears to be putting a burden of proof on the Appellant to show that his absence was stress related when Mr Lancake had no evidence to show that it was not. We do not take the view that that paragraph is imposing any kind of burden of proof on the Applicant at all. What is being said is that, and it seems not to be in dispute, that neither Mr Morris nor his representative ever said that the final absence was stress related. That appears to be an evidential matter which the Tribunal was entitled to take into account and give such weight to as it thought appropriate and we do not see any arguable ground here either.
20. Lastly, in the new ground, Mr Morris seeks to argue that the Tribunal were obliged to make a clear finding and a decision in the round as to whether there was an improper motive and as to reasonableness or unreasonableness. We have already referred to the case of Quereshi which Mr Bourne, on Mr Morris' behalf, used to support this part of his argument We agree with him that the Tribunal was so obliged; but in our view the Tribunal plainly discharged that obligation. It went through the history; it went through a number of the arguments; it concluded, having expressed its view on such arguments of points as it felt necessary to set out, at paragraph 30 that the reason for the dismissal was not trade union activities and it expressed a similar conclusion in the round at paragraph 32, where it said that while criticisms could be made of the manner and time scales within which that final written warning was administered, it did not believe that there was any ulterior motive in it being administered. to reasonableness, it made a decision in the round at paragraph 33, which I need not read. We do not think that the new ground adds anything more that contains in the arguable basis for an appeal.
21. There is one more thing that I should mention; in ground four another point is taken that the Tribunal did not give full reasons as to why it did not regard as undermining Mr Lancake's credibility the fact that there had been other cases where automatic progression through the stages of the procedure had not been applied with the same rigour as apparently was being applied in Mr Morris' case. There is no doubt that the Tribunal were alert to that point too; it dealt with it expressly in paragraph 25; it found that it did not consider that those comparators cases fatally undermined Mr Lancakes credibility. That again was a matter for the Tribunal. We have gone into this at some length because we felt it necessary to set out why we were not allowing the Applicant below, the Appellant here, to appeal on grounds other than ground one.
22. On ground one we decide that there should be a full hearing of his appeal and his appeal will go forward on that ground alone for a full hearing. The other grounds, we conclude, are not arguable and they will not be arguable of the hearing of the full appeal.