United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D BASU (of Counsel) Instructed by: Messrs Hammond Suddard Edge 2 Park Lane Leeds LS3 1ES
For the Respondent	MR D McWILLIAMS (Representative) Instructed by: Communication Workers Union 47 Summer Lane Birmingham B19 3TH


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a Decision of an Employment Tribunal sitting at Sheffield on 1 July of this year, who by a majority decided that Mr Smith, the Applicant postman, had been unfairly dismissed by the Royal Mail Group. Leave for this hearing was given by His Honour Judge McMullen in Chambers on 16 September.
2. The background facts are that Mr Smith was a delivery postman for a period of almost seventeen years. The Royal Mail, his employers, obviously have to rely heavily upon its delivery workforce turning up each day to carry out its main purpose, and therefore the Tribunal accepted, and of course we agree, that they cannot tolerate much in the way of absenteeism or poor timekeeping, and an agreed absence procedure was put into force from 1992 onwards, having been agreed with the recognised trades union, CWU. Its object was to monitor absences which would, once they had reached a certain level, trigger appropriate stages of disciplinary procedure.
3. Stage 1 would be reached if there were four absences or fourteen days in a twelve month period; Stage 2, two absences or ten days in any six month period during the next twelve months, and, finally, Stage 3 which gave entitlement to dismissal would be reached if there were further two absences or ten days in any six month period during the next twelve months; so as it were, the triggers occurred during the various twelve month periods. If Stage 3 was reached and the employers determined that that stage had been reached, their powers were either dismissal or to re-issue a Stage 2 warning. Effectively therefore the employee would be subject to monitoring for a further twenty four months before he could wipe the slate clean with no warnings facing him. The purpose of this policy, the Tribunal held and we agree, is essentially to deal with genuine illnesses as opposed to misconduct, but the essential purpose was to try and keep the workforce attending work as much as possible.
4. The employee's attendance record that we have seen does not make very comforting reading, and it is right to say that there had been repeated periods of absence throughout his employment and it is recorded that in that time of his employment, Stage 1 has been issued four times and Stage 2 has been issued once. There was one occasion when Stage 1 was not issued against him and on two occasions Stage 2 was not issued against him in the discretion of the managers carrying out the disciplinary process.
5. It is right to say that the pattern of absence, certainly until the last two years, has been one normally of frequent but reasonably short periods of absence for what might be described as flu, sickness, throat infection, respiratory infection type absences. There have been other absences for injuries incurred on duty, but they are not taken into account. From 1997 stress became a factor and in October 1997 there was a forty three day period of absence for stress when a Stage 1 warning was issued. In May 1998 there was a period of absence for five days for a urinary tract infection and Stage 2 was considered, but in fact not issued. Moving then on to more recent years, the Tribunal noted that there was a period of stress in November/December 2000, which again triggered Stage 1 although the warning appears not to have been formally issued until a month later, following a flu absence.
6. There was then, apart from a period of stress in March 2001, the two most recent absences which have figured centrally in today's hearing, and obviously in the Tribunal's Decision. First of all in July 2001 the employee was absent for a period of eight days for what was said to be a removal of a sebaceous cyst and he was given a second stage warning. He was not represented when that warning was given. Matters came to a head in April 2002 when he contracted a heart infection pericarditis, causing him to be absent for seventy four days which, numerically, certainly triggered off Stage 3. There was no issue about the genuineness of this absence and the Royal Mail's own medical expert, Dr MacCarthy, accepted that the problem had been serious and that he had been absent for no more time than was necessary on account of it.
7. As a result a Stage 3 hearing was conducted by a Mr Poore, one of the Royal Mail managers, and having heard the case he determined that as Mr Smith had not put forward anything in mitigation which justified anything other than his decision to dismiss him, he did this having reviewed the whole attendance record from 1993. The view he took was that Mr Smith's overall attendance record gave Mr Poore no confidence that things would get better in the future, from the point of view of attendance at work.
8. Mr Smith exercised a right of appeal which was heard by Mrs Stevens; she reviewed the whole case and came to the same conclusion. She noted that in the period between Mr Poore's hearing and her appeal hearing Mr Smith had in fact had a further two days off, on account of what was said to be "sickness diarrhoea".
9. The Tribunal accepted the following basic facts; that Mr Smith had never been absent from anything other than genuine legitimate reasons and they also accepted the various Stage 1 and Stage 2 warnings that I have set out. They accepted the background that the Royal Mail, with its peculiar role in having to deliver the national mail properly, requires good attendance and accepted that the procedure has nothing to do with conduct, it is merely to do, as they have said, with the fact that being absent for whatever reason, legitimate or otherwise.
10. The Respondent had argued that it was a case where the dismissal was potentially fair and said to be for some other substantial reason. That was accepted by the Tribunal and there is no appeal against this part of the Decision. They also accepted that the procedure adopted had been fair and the Respondent's case put to the Tribunal was that whatever the position might be in relation to Mr Smith's recent absences, when it looked at Mr Smith's record as a whole, was not confident that he was likely to improve sufficiently in the future.
11. The case fell to be determined as to whether or not the potentially fair dismissal was in fact fair. The Tribunal, in paragraph 12, reminded themselves of Section 98 ERA 1996, of the determination of the question whether the dismissal was fair or unfair, having regard to the reasons shown by the employer

"(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

They also reminded themselves of their function in paragraph 13 in these terms:

"Unless we can say that it was a decision which no reasonable employer in the circumstances could make we should uphold it whether or not we agree with it or consider that we ourselves might have dealt differently with Mr Smith"

12. The majority, who were the Chairman and one of the lay members, held that the dismissal was unfair and they dealt with their reasons in paragraphs 15 and 16 of their Decision. It is those two paragraphs about which complaint is made today by Royal Mail, and particular, of course, by Mr Basu, who has, as always, eloquently represented them. The Tribunal reminded themselves of the absence procedure, and particularly that section of the attendance agreement with the heading "Approach to individuals" wherein it is stated:

"Each case must be treated on its merits, taking into account issues such as length of service and nature of work."

13. Later on, the Tribunal majority use the words "mitigating circumstances" and we are certain that they must have therefore had in mind also what we regard as an important pre-amble to the procedure, which is set out in the Introduction to the Royal Mail Attendance Procedure in these terms:

"At every stage of the procedure there is an opportunity for employees to provide an explanation for their absence(s) and for mitigating factors to be fully taken into account. ….."

The Tribunal pointed out, as we have done, that the background was, as they describe it, "a sprinkling of absences between 1993 and 2000". They then refer to the stress which triggered off the first stage of the procedure, but then referred to the two most recent absences, the "nasty cyst", as they describe it, and the "Pericarditis".

14. The majority noted that the absences for stress had in fact ceased, the last one being March 2001, and they gave attention to what they regarded, the Tribunal, as an important feature, that Mr Smith had given up his union official role in December 2000. They felt that there were also further mitigating factors in Mr Smith's desire to continue with his work which he liked; the fact that Dr MacCarthy, the expert who had been brought in to consider the illness, had in fact determined that he was fit to return to work, and that he was unlikely to suffer any effects of the pericarditis in the future, and they then said this, and the first criticism is made of this paragraph of the sentence:

"We cannot conceive that any reasonable employer even one where attendance was crucial, would not have given someone in Mr Smith's position at least one more chance."

15. It is argued by the Appellants today that the majority decision represented their own views about whether the decision to dismiss was right or wrong, rather than considering the reasonableness of the employer's decision. However, if one reads on to the next sentence, that cannot be right because the majority continue:

"We remain conscious of the fact that we must not substitute our own decision for that of the employer because we realise that this is an industry where attendance is crucial and where there is an established procedure in place to deal with the issue."

It seems to us that the majority were doing no more than reminding themselves that if dismissal did not take place it still meant that Mr Smith would be subject to a Stage 2 warning, and as we pointed out above, effectively have two years before he could regard himself as having a clean slate as far as procedure was concerned.

16. The Tribunal majority then considered what they regarded as the mitigating factors that the employees had failed to take into account. Firstly they regarded as important, the fact that he had given up his role as union official and thus reduced the risk of stress induced absences in the future; certainly after March 2001, the record shows that there were no more stress induced absences, and then this important phrase, again of which criticism is made:

"the nature of the particular maladies which afflicted him in 2001 and 2002 were such as would be beyond the control of anyone"

That, perhaps, was an unfortunate choice of phrase because this policy is based on illnesses, none of which can said to have been the fault of the employee; it is based on a no-fault illness background.

17. If actually one reads on in the Tribunal Decision, one can in fact see what the majority had in mind when they referred to the "different sort of illness"; i.e that pericarditis was a serious illness, and by all accounts a one-off illness, unlike what might be described as "normal ailments" which affect a good number of the general population from time to time. It is clear that the Tribunal were doing no more there than comparing the previous track record of illnesses, which as we have indicated already, showed a higher level of frequency of a more common type of ailment, as opposed to the two particular ailments, and particularly pericarditis, that they were considering, which they described as one-off illnesses. We fully accept the point however that the Appellants make today that the whole policy is based on the fact that Royal Mail have always suggested that none of these illnesses have been under his control or have been anything other than genuine.
18. Finally, they referred to the period of long service, a period of just under seventeen years of service, albeit there was a somewhat chequered history as far as illness and absenteeism is regarded. They stressed again on page 7, paragraph 16, that Mr Smith had made efforts to put right some of the problems that had afflicted him, and they again stressed the nature of the illnesses, again describing them somewhat erroneously as "outside his or anyone's control". What we understand that to mean is that they were, as it were, one-off illnesses, as opposed to the general pattern of minor ailments that he had before.
19. They then refer to the fact that he had had trouble-free periods prior to the heart infection. Criticism again is made by the Appellants of that particular passage because there had been trouble-free periods in the past followed by further illness and it is said that the Tribunal did not give sufficient reasons in relation to why they did not consider those earlier periods. However if one reads on, one sees effectively what the Tribunal were getting at, because they reminded themselves that in the past there had been intermittent periods but they had been interspersed with periods of stress and other illnesses, so it seems to us again that they were highlighting the difference between the more recent history and the earlier history. The Tribunal majority concluded as follows:

"We have to conclude that no reasonable employer would have acted in the way this one did, i.e. it went beyond what was reasonable in all the circumstances. We are faced with two experienced managers who know the industry and know the procedure which has been applied by them in the past. Notwithstanding all that we have to say that, given the particular circumstances of Mr Smith's case and his efforts to overcome his difficulties, this was a decision which, in the majority view at least, was 'over the top' and beyond what a reasonable employer could or should have done in the circumstances. Whilst Mr Poore and Mrs Stevens told us that they weighed everything up, we do not believe they did, certainly not in any way in which any reasonable employer would or should have done."

20. The minority member, Mr Fox, took a different view, namely that with the repeated pattern of absenteeism in this case, for whatever reason, the employers were entitled to say that they had no confidence that his attendance record would improve.
21. We do not seek to differ from the Tribunal's majority view. The policy is based on mitigating factors being taken into account. The view of Mr Poore was that, and we read his note, that "there was no substantial mitigation available to Mr Smith".
22. The majority members were clearly disagreeing with that view and correctly held that if there is a policy which, although primarily based on making sure that employees do attend as frequently as possible so that the requirement of Royal Mail to carry out its deliveries can be fulfilled, specifically provides for mitigating factors to be taken into account, then Mr Poore was acting unreasonably in disregarding the mitigation in this case.
23. The particular nature of the illnesses is, in our view, a factor which they should take into account and we are reinforced in that view by a brief passage in the case of Wilson -v- Post Office [2000] IRLR 834, where the Court of Appeal said this in paragraph 25 in the judgment of Lord Justice Buxton:

"We agree that if the industrial tribunal had correctly based its s.98(4) deliberation upon a sui generis attendance procedure dismissal then the underlying and continuing health of the applicant could not be excluded as a wholly irrelevant factor, but it could not have acquired the prominence appropriate to a "capability" dismissal."

So there the Court of Appeal is, in our view, reinforcing the view taken by the Tribunal that there can be mitigation in the particular nature of the illness for which the warning has been issued, and we agree with the view that the majority took of the other mitigating factors in relation to the absence of stress as a reason for his non-attendance and also the efforts that he had made and the fact that the previously recurring pattern of minor illnesses appeared no longer to be apparent in his case.

24. One further minor matter; complaint is made that the majority did not pay sufficient attention to the two more days off for reasons not connected with pericarditis, which occurred between the initial disciplinary hearing and the appeal, a point that was raised by the majority member Mr Fox. We do not regard that particular period as in any way significant; it was a period of two days occurring during his period of notice, and in our view does not take anything away from the substantial mitigating factors which the majority clearly found and set out with great clarity in paragraph 16 of their Decision. For those reasons, therefore, we would dismiss this appeal.