United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SUZANNE PALMER (of Counsel) Instructed by: Messrs Bond Pearce Solicitors Oceana House 39-49 Commercial Road Southampton SO15 1GA
For the Respondent	MR PETER SAVILL (of Counsel) Instructed by: Messrs E J Moyle Solicitors 15 Beach Road Littlehampton West Sussex BN17 5HO


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a decision of the Employment Tribunal sitting at Brighton on 5 June 2003 who in a decision promulgated on 7 July 2003 held that Mrs Tatum had been unfairly dismissed. Leave for this full hearing was given by a Tribunal hearing on 16 October 2003, His Honour Judge Richardson presiding.
2. The Respondent was employed by the Appellants as a post woman at their Littlehampton office from 30 August 1988 until her dismissal on notice in June 2002 with an effective date of termination of 27 September 2002, pursuant to the Appellants' attendance procedure. The Appellants contend that the dismissal was for "some other substantial reason" and was fair, pursuant to section 98 of the Employment Rights Act 1996.
3. The Appellants have an attendance procedure which was agreed with the Communication Workers Union which is designed to deal with sickness absences said to be genuine which do not amount to chronic illness and do not amount to misconduct. There are three stages of the procedure and warnings can be triggered by either frequent short or lengthier sickness absences. The final stage, Stage 3, can be triggered if there are a minimum of either two absences or 10 days in any six month period during the next twelve months after a Stage 2 warning.
4. At every stage of the procedure there is an opportunity for employees to provide an explanation for their absence and for mitigating factors to be taken into account; and the procedure provides that each case will be treated on its merits taking into account "issues such as length of service and nature of work". If dismissal is being considered the employers must obtain a report from their employee health service doctor. The manager dealing with a Stage 3 procedure has the right, if he decides to dismiss, or to return the employee to Stage 2 of the procedure, in which case the attendance standards appropriate to that stage will apply.
5. Since her employment commenced Mrs Tatum had received a number of Stage 1 and Stage 2 warnings and in April 1995 she had reached Stage 3 which was downgraded to Stage 2.
6. During her period of employment there were also concerns in relation to her late attendance for work which were dealt with under a separate conduct code and she had on occasions received formal warnings under that procedure.
7. In January 2001 there was a further Stage 2 warning which was followed by further sickness absences which resulted in Royal Mail obtaining a report from Doctor Webb, the Occupational Physician. He neither interviewed the employee nor obtained any of her GP notes but reported as follows in May 2001:

"I have looked carefully at this lady's sickness absence record and her personal medical notes.

None of her numerous short absences is part of any chronic medical condition. Therefore neither consideration of medical retirement or action under the Disability Discrimination Act are appropriate.

It may be difficult for a well-established pattern of sickness absence to change.

Action appears to be entirely managerial."

This was followed by a further 10-day absence certificated by her doctor at the end of May on the grounds of anxiety and depression.

8. Mrs Tatum was seen on 26 June 2001 for the purpose of an interview under the Stage 3 procedure, accompanied by a union representative and she told Mr Woods, the manager conducting the investigation about considerable matrimonial and family problems that she had experienced in the previous year. The interview notes continued as follows:

"I asked Mrs Tatum if there was a link between her late attendances and her sick absences, saying that there were there occasions when she got up late and subsequently went sick rather than incurring another late attendance. Mrs Tatum said that this was not the case and all sick absences were genuine in their own right."

9. Mr Woods decided to dismiss on the grounds of unsatisfactory attendance on the basis that her current attendance record was unlikely to improve and that there were no mitigating circumstances to make it unreasonable for him to dismiss her.
10. She appealed the decision to Mr Haines. In the interview with Mr Haines she went into considerably more detail about her personal circumstances and in particular she claimed that most of her absences in recent years probably all related to depression. She revealed that she had been seeing a counsellor for weekly sessions and that she was now feeling a lot happier herself and that many of the issues that were then a problem had been resolved.
11. On the basis of this additional information he allowed the appeal and returned her to Stage 2 of the attendance procedure, effective from the date of her Stage 3 interview, i.e. 26 June 2001. In his reasons he stated as follows:

"There is no doubt that her attendance record is very poor, in normal circumstances even with the action she has taken I may not have allowed this appeal. However, as mentioned I am not convinced that her attendance has been properly managed in the past, and that appropriate action was taken to address the problem rather than tolerate it…

I am still not entirely convinced that Mrs Tatum will be able to reach the required standards of attendance. However, for the reasons outlined above I am giving her an exceptional chance to do so."

12. However, this was followed by three further periods of absence: in November 2001 three days for influenza; in February 2002 one day for a stomach upset and diarrhoea; and in April 2002 a period which was initially stated as being six days for tendonitis but which on closer examination appeared only to be one day followed by five days holiday.
13. Mrs Tatum alleged that the tendonitis in her right wrist had been caused by sorting and flicking through bundles of mail at Gatwick. She claimed that she had tried to see her doctor on three occasions but could not get an appointment. She was asked why she believed that she had tendonitis and said that her daughter had suffered from the same thing. Again Dr Webb provided a brief report:

"Perusal of this lady's sickness absence record and medical file does not suggest to me that she is suffering from any chronic medical condition.

Therefore neither consideration of medical retirement or action under the Disability Discrimination Act are appropriate.

She ought to be able to give regular service.

Action appears to be entirely managerial."

14. She was again called to a Stage 3 interview conducted by Mr Woods. At the beginning of the interview Mrs Tatum corrected the record as regards the absence with tendonitis and Mr Woods accepted that since the last warning she had incurred three absences totalling five days. The notes continued as follows:

"I explained to Mrs Tatum that I would draw a line under her previous absence record prior to her appeal hearing as that had been fully dealt with at that appeal hearing. Mrs Tatum and Mr Mayell accepted this as a reasonable course of action."

15. Mr Woods asked her if there were any continuing problems with her ex-husband or family, or financial, or domestic, or any other reason that was still ongoing. She said that there were none and that they had all been resolved. He pointed out to her that she had managed to attend for work throughout her notice period last year while she was waiting for her appeal to be heard. However since that time her attendance had dropped back to its previous pattern of not being able to sustain a period of three months without an absence. She was asked to explain it and could only reiterate that she would not take time off unless she was genuinely ill. She said that she had not asked for assistance from either the employee health or employee support services.
16. On the same day as Mr Woods carried out this interview he had also interviewed her regarding her late attendance record as it had reached the point where dismissal was under consideration. Details of her late attendance before the Tribunal indicated that there was a deteriorating problem in relation to late attendance towards the latter part of 2001 and early 2002.
17. In his decision to dismiss under the sickness procedure Mr Woods pointed out that Mrs Tatum's attendance had given cause for concern persistently throughout her career with Royal Mail. He then went over the three absences since the last warning and in particular the absence on the grounds of tendonitis. He commented that he had asked her why she had not contacted her GP or employee health service regarding the problems or her health in general and that she could offer no explanation but accepted in hindsight that it would be the correct thing to do. His conclusions continued as follows:

"On the same day as I carried out this interview I also interviewed Mrs Tatum regarding her late attendance record that had also reached the point where dismissal was under consideration. Mrs Tatum's late attendance problem is equally as bad as her attendance and on a number of recent occasions she has attended for work up to 2½ hours late, I believe there is a link between these two standards and Mrs Tatum is unable to achieve either consistently."

18. The decision to dismiss was communicated to her by letter on 5 July. On the same date she also received a "serious warning" in respect of her persistent late attendance.
19. She appealed the decision to dismiss. The appeal was conducted by Mr Linham and in his notes he recorded that none of the issues that she had raised in the previous appeal before Mr Haines still existed and that she raised a new issue of harassment. By way of mitigation she also claimed that a double standard was being applied in regard to her late attendance since she was being taken to task about it but others who were consistently late in the morning were let off. She also gave Mr Linham some more information in relation to how she may have contracted the tendonitis. He followed up this information with interviews with the delivery office manager Mr Luke and having considered all the matters decided to uphold the decision to dismiss.
20. The first complaint raised by the Appellants is that the Tribunal erred in law and/or acted perversely in that it directed itself to the wrong legal test and/or considerations when considering the reason for dismissal. In particular in both paragraphs 35 and 36 of their decision they refer to the "sole" reason for dismissal rather than the principal reason set out in section 98 (1) (a) of the Employment Rights Act 1996 which provides that:

(1) "In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal."

21. Further, in seeking to determine what was the principal reason for dismissal or, as they described it, the sole reason, the Tribunal relied on matters that more properly should have been considered under the determination of the question of the fairness of the dismissal pursuant to section 98 (4); for example, Mr Linham's failure to take into account the fact that the third absence was caused by a work-related injury, the comment made by Mr Woods that he was drawing a line under her previous attendance record and finally the possibility that Mr Woods had formed the view that her non-attendance on the ground of sickness was not genuine.
22. Both in paragraph 30 and 34 of the Tribunal's decision they repeat what was an important factual error, that the disciplinary procedure had not been invoked in respect of her non-attendance, whereas by 1992 it had been invoked in respect of her late attendances, although it was never invoked in respect of an allegation that her sickness attendances were other than genuine.
23. A reason for dismissal is a set of facts or beliefs on the part of the employer which causes him to dismiss. In Harvey on Industrial Relations Vol. 1 paragraphs D1 822-824 it is said that the employer's subjective belief enables him to jump the hurdle of establishing a prima facie fair reason for the dismissal. This was reaffirmed in Post Office v Foley [2002] ICR 1283.
24. It was the Appellant's clear and unchallenged evidence in this case supported by documents that the principal reason for dismissal was poor attendance which should have been characterised as involving dismissal for some other substantial reason under section 98 (1) (b) ERA 1996: see Wilson v Post Office [2000] IRLR 834.
25. We are in no doubt that the Tribunal wrongly addressed itself to the issue of the sole reason rather than the principal reason and that had they applied the correct test there could be only one conclusion on the evidence available to them which was that the dismissal was for some other substantial reason, i.e. poor attendance. In particular the Tribunal appear to have been swayed by the failure on the part of the Appellants to take disciplinary proceedings which by the middle of 2002 had in fact been commenced.
26. The matter however does not end there, since both parties agree that matters which the Tribunal considered under the first stage of establishing the principal reason for dismissal may have an impact on the issue of the fairness of the dismissal, in addition to the matters which the Tribunal relied upon in support of their contention that this was not a fair dismissal, i.e. the lack of consistency of approach amongst the workforce, the failure of the company doctor to have any consultation with the employee or obtain details from her GP and the mixing of the issues of conduct and poor attendance.
27. The Appellant's overall submission on these points is that the Tribunal erred in law in that it substituted its own view for that of the employer and/or acted perversely in that it reached a view which no reasonable Tribunal properly directed could have reached. In particular, the Tribunal failed to ask themselves the correct question, namely whether these employers in dismissing this employee acted outside the range of reasonable responses of a reasonable employer. We shall consider each of these issues in turn.

Late attendances/Not genuine illness

28. These issues were dealt with by the Tribunal in paragraphs 30, 31, 34, 35 and 39 where the Tribunal repeatedly say that disciplinary matters, i.e. her late attendance, were raised as part of the reason for dismissing her under the attendance procedure and complained that the alleged misconduct was not raised in the context of the Respondent's formal disciplinary procedure. As we have already pointed out, that was an error on the part of the Tribunal.
29. Whilst both in 2001 and 2002 within Mr Wood's documentation there is a reference to a possible link between her late attendances and her sick absences the overall conclusions both in the disciplinary hearings in both years and the subsequent appeal hearings were based simply on the frequency of the absences following Stage 2 warnings. We have also seen summaries of the evidence given before the Tribunal when both Mr Woods and Mr Linham confirmed in oral evidence that all the absences were assumed to be genuine and that this fact was not challenged in cross-examination either by Counsel or by the Tribunal. Indeed, it was never put to either Mr Wood or Mr Linham that the issue of her late attendance played any part in the decision to dismiss.
30. The difficulty which we have with this Tribunal's decision is that the issue of late attendance based on the incorrect assumption that no disciplinary procedure had been instigated is relied on by the Tribunal both in relation to the findings concerning the reason for dismissal and also its fairness.

Failure to exclude a work-related injury

31. The Royal Mail procedure provides that accidents which happen in the course of work would normally be discounted and the Tribunal expressed concern that Mr Linham did not appear to have addressed his mind to the possibility of excluding that absence, although he did not have to.
32. However, the Respondent's assertion that her one-day absence was caused by having to sort and flick through items of mail was no more than speculation on her part and unsupported by medical evidence since she had not gone to either her doctor or the Company's doctor. The evidence was self-certified and was based on the fact that her daughter had suffered the same thing.
33. We agree with the Appellant's submission that it was within the range of reasonable responses for the Appellant to take these factors into account in deciding whether or not it was appropriate to exercise its discretion to discount the absence allegedly related to an accident at work. In any event, since the employee had already had two sickness absences following the Stage 2 warning, the third absence was somewhat academic.

Drawing the line

34. The third matter of concern to the Tribunal is that although in June 2002 Mr Woods explained that he was drawing a line under her previous absence record as that had been fully dealt with at the appeal hearing, her overall record was referred to by Mr Woods in his conclusions; and also that in 2001 the Respondent had not been returned to the start of the procedure but reverted to Stage 2. In those circumstances the Tribunal took the view that the Appellants were setting the Respondent up to fail.
35. Dealing with 2001, the Tribunal failed to appreciate that, under the attendance procedure, if dismissal does not take place at Stage 3, the only alternative is to return the employee to Stage 2 which is the action that Mr Haines took. Further, the suggestion that a line was drawn under her previous absence record came in the notes of Mr Woods' interview with the employee dated 29 June.
36. We have had the opportunity of considering those notes and read in their entirety we do not take them to mean that the previous attendance record had been wiped clean or erased. Indeed that could not be possible since the employee could only reach Stage 3 if there had been previous breaches of the procedure giving rise to Stage 1 and Stage 2. Mr Woods was clearly saying that he was not going to revisit the detail of the particular illnesses that had given rise to the previous warnings but was going to concentrate on the three absence periods since November 2001.

Consistency

37. The Tribunal raise the issue of inconsistency of treatment in paragraph 36 of their decision as follows:

36 "Even had the Respondent satisfied us that the sole reason for the Applicant's dismissal was her poor attendance record we had some concern in that we heard evidence from Mr Barnes that a number of other employees had a similar or worse attendance record than the Applicant but were not dealt with as harshly as the Applicant. This was not disputed by the Respondent. It appears that because there are a number of managers applying the attendance procedure and those managers have an absolute discretion to reduce the penalty even to a nil sanction there must inevitably be some inequality of treatment in the application of the procedure. It seems to us that for there to be a fair procedure it must be applied evenly amongst the workforce."

38. The issue of inconsistency of approach had not been raised during the disciplinary or appeal hearings in 2001, or in 2002, save for the reference in Mr Linham's notes to the employee complaining about double standards being applied with regard to her late attendance. The issue had arisen at the Tribunal as a result of evidence from a statement of Kevin Barnes in support of the employee when his statement had cited two fellow employees, Mr Andrew Merriweather who he contended had as bad an attendance and lateness record as Mrs Tatum if not worse, but who had not been dealt with so severely; and a David Cox who according to Mr Barnes had been late quite a few mornings over a few months but no action had been taken against him.
39. The issue of consistency was considered by this court in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 where Waterhouse J giving the judgment of the court said at paragraph 25:

25 "We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation."

40. In the light of this approach and in the light of what appears to be an absence of evidence before the Tribunal of a truly comparable situation the Tribunal clearly failed to apply the appropriate test, namely that of the range of reasonable responses. In particular, they failed to have regard to the agreed procedure which requires employers to consider the merits of the individual case; and also failed to consider the size of the Appellant's workforce.

Failure to obtain proper medical evidence

41. This issue was dealt with in paragraph 37 of the Tribunal's decision as follows:

37 "Still dealing with the Applicant's dismissal for poor attendance, we were also concerned that despite the fact that dismissal under the Respondent's attendance procedure is a matter of last resort, the Respondent took the decision that the Applicant had no medical condition justifying her being placed on the rehabilitation sickness procedure. This decision was based on a medical opinion which had been arrived at without the company's doctor having had any consultation with the Applicant or details of her medical records. Had the Applicant had a chronic illness justifying her being placed on the rehabilitation sickness procedure then she would not have been subject to the attendance procedure. For a doctor to not even see an employee or look at her medical record does not come close, in our view, to a reasonable investigation of a problem suffered by the Applicant which could be set in mitigation against her attendance record and have placed her on a different procedure. In his appeal Mr Linham places great reliance solely on the SOP's report. It seems to us that if a medical report is to carry such weight then the doctor concerned should at least have more information before him than the employee's attendance record."

42. The proper approach in dealing with an employee with a poor record of sickness absence has been considered by this court on a number of occasions. In Lynock v Cereal Packaging Ltd [1988] IRLR 510 Wood J giving the judgment of the court set out the position thus:

14 "Summarising the various points taken by Mr Hinchliffe in our judgment, there was no requirement to have further medical evidence. Although the Applicant was in employment again at the time when he was dismissed, this is likely to be the situation where you have these intermittent absences and the fact that there had been those absences since February 1986 indicated that there was no improvement. The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgment – sympathy, understanding and compassion. There is no principle that the mere fact that an employee is fit at the time of dismissal makes his dismissal unfair; one has to look at the whole history and the whole picture. Secondly, every case much depend upon its own fact, and provided that the approach is right, the factors which may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following – the nature of the illness; the likelihood of it recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the adoption and the exercise carrying out of the policy; the important emphasis on a personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching. These, we emphasise, are not cases for disciplinary approaches; these are for approaches of understanding, and in this case, in our view, the employers acted perfectly properly, but, what is more important, the Tribunal had an opportunity of reviewing the whole situation; they did not fail in any way to reach a proper conclusion on a proper direction of law and we are unable to find any grounds on which they can be criticised."

43. In International Sports Co Ltd v Thomson [1980] IRLR 340 the employee was dismissed for persistent absenteeism:

"For the last 18 months of her employment she was absent on average for about 25% of the time. Most of these absences were covered by medical certificates which referred to conditions such as "dizzy spells, anxiety and nerves, bronchitis, virus infection, cystitis, althruigra of the left knee and a dyspepsia and flatulence."…

Before deciding to dismiss, the appellants consulted the general practitioner employed by them on a part-time basis. After looking at the respondent's medical certificates, the doctor advised that no useful purpose would be served by examining her because she had not had any illnesses which could be subsequently verified. He could not see any common link between the illnesses and said that the respondent was not suffering from any long term chronic illness."

44. The Industrial Tribunal had found the dismissal unfair and this court in allowing the appeal and substituting a finding of fair dismissal dealt in some detail with the issue of the proper investigation to be carried out by employers. At paragraph 13 they said this:

13 "As for the second, there is no rule of law or practice to support the proposition that the appellants were bound to investigate the bona fides of the medical certificates issued in this case. The Tribunal themselves felt able to conclude, on the evidence before them, which did not include any medical evidence, that 'The truth of the matter is that Mrs Thomson was not suffering from any serious illness at any time during her employment. She suffered at the worst from a series of minor illnesses and apparently had a complaisant doctor who was prepared to issue certificates to justify her absences from work.' In our judgment, it cannot realistically be said, therefore, that any reasonable employer would have investigated the position in order to query the authenticity or genuineness of medical certificates before reaching a decision; but this is what the Industrial Tribunal, in the instant case, said that the appellants should have done: see paragraph 8 of the Reasons. One may ask also, what effective investigation could have been carried out by the employers, bearing in mind the advice given by the company's doctor and the sparseness of medical records in respect of minor ailments in general practice?

…

15 In such a case it would be placing too heavy a burden on an employer to require him to carry out a formal medical investigation and, even if he did, such an investigation would rarely be fruitful because of the transient nature of the employee's symptoms and complaints. What is required, in our judgment, is, firstly, that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings, after the employee has been given an opportunity to make representations. If then there is no adequate improvement in the attendance record, it is likely that in most cases the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee. It is to be noted, in the instant case, that the appellants did seek medical advice before they made the decision, and we can see no ground for criticism of the quality of that advice or of the appellants' acceptance of it. Accordingly, there was no chronic illness for them to investigate. Moreover, if the appellants had investigated the dyspepsia and flatulence further, they would no doubt have reached the conclusion that the symptoms should have been cured very quickly by a simply diet, which was the Tribunal's own finding."

45. The Appellants contend that there was nothing to put these employers on notice that would have required them to obtain more detail and medical information about the employee. Whilst in 2001 she had had a period of absence for anxiety and had referred to the possibility that her illnesses at that time were caused by depression; by 2002 when Mr Woods came to interview her again she specifically denied that she had any continuing problems either with her husband, family, financial or domestic and claimed they had all been resolved. She also confirmed that she had not had any assistance from either the employee health or employee support services and there was nothing in the nature of her illnesses giving rise to the three absences that would put the employers on notice that there was any underlying cause.
46. The Tribunal's decision as to unfairness appears to have been based on the employer's decision that she had no medical condition which justified her being placed on the rehabilitation sickness procedure, without the Company doctor having had any consultation with her or detail of her medical record. We do not accept that that was the correct approach for the Tribunal to take. Based on the authorities to which we have referred the appropriate question must be whether a reasonable employer in the light of the employee's previous employment and medical history and in the light of the information currently made available to them by the employee would consider it appropriate to obtain further medical evidence about the employee, either from her own GP or through a medical examination with their own doctor.
47. Mr Saville for the Respondent argues that if the Tribunal had asked themselves this question and in the light of the 2001 information given to Mr Haines concerning possible depression and its linkage to her absences thereby disclosing a possible chronic condition they should have concluded that the employers in 2002 would have been bound to call for a report from her GP.
48. This question, however, is not for us to answer. We have taken the view that in the light of the Tribunal's error with regard to the reason for dismissal as opposed to its fairness, the error with regard to the failure to appreciate that disciplinary proceedings had indeed been commenced and their particular failure to ask themselves the correct question with regard to the medical evidence the only appropriate course left to us is to allow the appeal and remit this matter back to a fresh Tribunal for a rehearing.