United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J HALSON (Solicitor) Messrs Ostrin Solicitors 115 Belle Vale Road Gateacre Liverpool L25 2PE


 


JUDGE PETER CLARK:

1. The appellant, Mr Fletcher, was employed by the respondents and their predecessors, BRB, as a train driver from 12th November 1990 until his dismissal on grounds of capability effective on 24th October 1998.
2. The respondent operated a procedure known as "the Monitoring for Attendance Procedure" ('MFA'). Its purpose is to adopt a staged process whereby persistent short term absences, with the disruption to services which they involve, may eventually lead to an employee's dismissal. The procedure has five stages: (1) an interview at which the employee is advised that his attendance would be monitored over the 12 months and if there was no improvement he would move to a stage 2 interview (2) at this stage, following interview a formal written warning follows; (3) the final warning stage (4) dismissal (5) appeal.
3. It was the respondent's case, in answer to the appellant's complaint of unfair dismissal, that they followed their MFA Procedure before dismissing him and that the dismissal was fair.
4. That case was accepted by an Employment Tribunal sitting at Manchester under the chairmanship of Mr M L Creed, on 30th September and 1st October 1999. By a reserved decision with extended written reasons promulgated on 24th January 2000, the tribunal dismissed the complaint. Against that decision Mr Fletcher now appeals. This is a preliminary hearing to determine whether the appeal raises any arguable point or points of law to go forward to a full inter partes hearing.
5. The facts are set out in detail and with admirable clarity in the tribunal's decision. We need not repeat them here.
6. It was accepted by the appellant that he was dismissed for a potentially fair reason, capability, as the tribunal found. The question for us is whether it is arguable that the tribunal erred in law in concluding that the respondent had acted reasonably in treating that reason as a sufficient reason for dismissal. Employment Rights Act 1996, s.98(4).
7. In support of the appeal Mr Halson takes broadly two points:

(a) that in deciding the s.98(4) question the tribunal has confined itself solely to the question of whether or not the respondent followed its own MFA procedure. That is not, he submits, the question. A number of factors fall to be considered by the tribunal in applying s.98(4) to a case of persistent intermittent absences. He has referred us to the observations of Wood J in Lyncock v Cereal Packaging Ltd [1988] IRLR 511 (ICR 670).

We reject that submission. They were careful to say at paragraph 6(a) of their reasons, that a dismissal using the procedure could be fair. Failure to comply with their own procedure was unlikely to be unfair. Nothing was set in stone. We have no doubt that the Employment Tribunal had in mind, as Wood J pointed out in Lyncock, that each case depends on its own facts.

Moreover, we discern from the tribunal's reasons read as a whole that the tribunal considered, in reaching the conclusion that this appellant's dismissal was fair the following factors as they found them:

(1) that the appellant, who had been a trade union representative, was aware of the MFA scheme;

(2) that stages 1, 2 and 4 of the scheme were conducted in accordance with its terms;

(3) that although Mr Seymour, the manager dealing with stage 3, made factual errors, particularly as to the number of relevant incidents during a particular 13 week period; there were two not three incidents as he said. Those errors were not material in that the conditions of the scheme were met;

(4) on certain factual issues having a bearing on whether the appellant was correctly advanced through to stage 4 of the scheme, the tribunal rejected evidence given by him and accepted that of the respondent; in particular as to whether he was absent between 28th October and 2nd November 1996 so as to fall within the 52 week monitoring period between stages 2 and 3;

(5) the appeal process, stage 5, was properly conducted.

In these circumstances we are satisfied that they looked at the matter as a whole and did not confine themselves simply to the question of whether or not the respondent had fully complied with its own MFA procedure.

(b) Mr Halson submits that on the face of the MFA procedure and the tribunal's findings of fact, the respondent had not, contrary to the tribunal's conclusion, followed that procedure. He takes a number of points:

(1) that the procedure itself was ambiguous in that it did not specify what improvement was required to terminate an employee's advance through the stages of the procedure.

It seems to us that the appellant, on the tribunal's findings, was sufficiently familiar with the procedure to understand what would happen in future and at each stage it was made clear to him where he stood. We see nothing in this point on appeal, it being essentially a jury point.

(2) he submits that it was unclear to the appellant as to when the relevant 52 week monitoring period began to run.

Again, we think that that is a matter for argument before the Employment Tribunal and not a matter for consideration on appeal.

(3) it is submitted that the consequences to the appellant were not made clear. In particular he was not provided with written confirmation of the final warning administered at the stage 3 interview held on 20th May 1998. Mr Halson accepts that the appellant was made aware that he was then on a final warning, an expression which is well known throughout industry.

(4) he refers to a factual error in the tribunal's reasons. At page 6 of the decision reasons at paragraph (vii) the tribunal state that:

"The applicant was medically reviewed on 4 September 1998 and declared fit for normal duties."

Mr Halson has satisfied us that that is factually incorrect. The appellant was seen on 14th September 1998. On that error Mr Halson seeks to build this case, that the tribunal were under the misapprehension that before his return to work on 5th September 1998 the appellant had been seen and declared fit for normal duties in circumstances where the respondent had considerable doubt about the authenticity of that particular absence between 27th August and 5th September

That is not how we read the decision as a whole. It seems to us that the tribunal made a simple typographical error in their decision. This is not a case in which it was suggested by the respondent, nor found by the tribunal, that the appellant had been malingering. This was a dismissal by reason of capability and not conduct. In these circumstances we are satisfied that this error is simply typographical and has no material bearing on the overall conclusions reached by the tribunal.

8. Having considered the submissions advanced by Mr Halson we have reached the conclusion that this is really an appeal on fact which is sought to be dressed up as an appeal on law. We can see no arguable error of law in the tribunal's approach and consequently this appeal must be dismissed at this preliminary hearing stage.