United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R LINSKELL (Solicitor) Legal Adviser Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ
For the Respondent	Respondent neither Present nor Represented


 


JUDGE CLARK

1. This is an appeal by the Respondent employer before the Bristol Employment Tribunal sitting on 15 February 1999, Messier-Dowty Ltd, against that Employment Tribunal's decision, promulgated with extended reasons on 15 April 1999, upholding the Applicant, Mr Butler's complaint of unfair dismissal.

The Facts

2. The Applicant was employed by the Respondent from 13 August 1990 until his dismissal effective on 6 October 1998.
3. In 1994 he suffered an accident whilst go-carting. He then suffered from an intestinal infection which proved elusive to diagnose. The upshot was that by 8 September 1998 he had been absent from work for 297 out of the previous 1,068 working days.
4. The Respondent, a substantial Company, had no set procedure for employees with a history of absences due to long term illness. The Employment Tribunal found that they decided to operate their disciplinary procedure, geared to cases of misconduct, although the particular problem related to the Applicant's capability to do his job as a computer system programme/administrator. It was accepted that he was good at his job, when at work, and that his absences were genuinely based on ill health.
5. That procedure provided for a first stage formal verbal warning, second stage written warning, third stage final warning and fourth stage disciplinary action.

Paragraph 5 of the procedure provided specifically for the omission of stages. It said:

"The procedure may be implemented at any stage if the employee's alleged misconduct warrants such action."

6. There was evidence before the Employment Tribunal from Roger Goldby, the Respondent's Human Resources Manager, and Cameron Lacey, the IT Manager, which the Employment Tribunal accepted. That evidence included a note which had been prepared by Mr Goldby on 22 April 1998 of a meeting which he had on that date with the Applicant in which he raised his concern over the amount of sickness over the previous 2½ years. Later that day the Applicant saw Mr Lacey, and his note of that date records that he saw the Applicant at 4pm, and that the Applicant had expressed relief that he had not received a warning re his poor attendance.
7. It follows from that evidence that the Applicant did not receive a first stage verbal warning on that day. Mr Goldby confirmed that fact in his witness statement which was before the Employment Tribunal.
8. On 11 August a meeting took place with the Applicant, following which Mr Goldby administered a formal written warning dated 19 August.
9. On 21 September Mr Boylin, the Human Resources Director, asked the Applicant to attend a meeting on 24 September under the Company's disciplinary procedure.
10. In fact that meeting took place on 6 October, at which the Applicant was dismissed.

The Employment Tribunal Decision

11. The Employment Tribunal found that the Respondent could have terminated the Applicants employment fairly at a much earlier date, however, and this was their only criticism of the Respondent, having purported to deal with the matter on the basis of their disciplinary procedure the Respondent then failed to follow that procedure. In these circumstances the Employment Tribunal found that the dismissal was unfair, but went on to hold that had a fair procedure been followed, employment would have ceased one month later. The compensatory award for unfair dismissal was limited accordingly.

The Appeal

12. This morning Mr Butler telephoned to say that due to transport difficulties he would not be attending this hearing. He asked us to treat his skeleton argument as written submissions. That we have done and Mr Linskell has had an opportunity to comment on those submissions.
13. In support of the appeal Mr Linskell takes 3 points, which may be conveniently considered in the following order.

(1) Adequacy of Reasons

It is submitted, applying the Court of Appeal guidance in Meek –v- City of Birmingham District Council (1987) IRLR 250, that the Employment Tribunal failed to give sufficient reasons to explain their finding of unfair dismissal. We reject that submission. It is clear to us that the critical feature in the Employment Tribunal's decision was the clear finding that the Respondent, albeit inappropriately, purported to apply its disciplinary procedure to this capability case and in doing so omitted 2 stages of the procedure, on the Respondents own evidence, namely stages 1 and 3, the verbal warning and final written warning.

(2) The Employment Tribunal so found when in fact the Respondent had complied with its disciplinary procedure. Mr Linskell relies on paragraph 5 of the procedure, Omission of Stages. He submits that the Employment Tribunal cannot have it both ways. Although paragraph 5 refers to misconduct that must be read as capability where the procedure is used in a capability case.

We think that there are two difficulties with that submission. First, as Mr Butler points out, the power to omit stages in the procedure applies only when the employee's misconduct warrants such action. This is not a misconduct case. But secondly, even if the word capability is there substituted for misconduct, as Mr Linskell invites us to do, it does not appear that any argument or evidence was advanced below to show why it was appropriate to miss out 2 of the 4 stages in the procedure on the facts of this case.

(3) The finding of unfair dismissal is inconsistent with the express finding that the Respondent could have fairly dismissed the Applicant at an earlier date. The Respondent had done sufficient, looking at the matter in the round under Section 98(4) of the Employment Rights Act 1996, for this to be a fair dismissal, applying the general principles to be found in cases such as Spencer –v- Paragon (1977) ICR 302 and East. Lindsey District Council –v- Dawbney (1977) ICR 566. Mr Linskell also referred us to the judgment of Wood J on behalf of the Employment Appeal Tribunal in Lynock –v- Cereal Packaging Ltd (1988) ICR 670.

We disagree. Where an employer chooses to apply his own disciplinary procedure, even if inappropriately, if he then does not follow that procedure it is open to an Employment Tribunal to find that the dismissal is unfair. The importance of a fair procedure was emphasised by the House of Lords in Polkey –v- AE Dayton Services Ltd (1988) ICR 142, see particularly the speech of Lord Bridge.

14. In these circumstances, having carefully considered the argument ably advanced by Mr Linskell we are not persuaded that any error of law is here made out. Accordingly this appeal is dismissed.