THE INDUSTRIAL TRIBUNALS

CASE REF:	239/08

CLAIMANT:			Gloria Fletcher

RESPONDENT:		Tesco Stores Limited

DECISION
The unanimous decision of the industrial tribunal is that the claimant was not unfairly dismissed by the respondent company.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Mr J Hughes
			Mrs T Hughes

Appearances:
The claimant was represented by Mr B McKenna, Barrister-at-Law, instructed by McKenna Sweeney McKeown, Solicitors.
The respondent company was represented by Ms A Jones-Campbell, Solicitor, of Jones Cassidy Jones, Solicitors.

1.	(i)	The claimant, Ms Fletcher, was dismissed by the respondent company following a period of absence through sickness.  There is no allegation that she is a person who suffers from a disability.  The reason for her dismissal related to her capability.  This is potentially a fair reason for dismissal, and the issue for the tribunal was whether or not it was a fair dismissal.	
			
	(ii)	In order to determine this matter, the tribunal heard evidence from the claimant, and from Mr Paul Gilvary and Mrs Annette Martin on behalf of the respondent company.  Mr Gilvary, at the relevant time, was the manager of the respondent company’s Lisburn store, where the claimant worked.  Mrs Martin was the Personnel Manager at that store.  The tribunal also had regard to documentary evidence submitted by the parties.	
			
	(iii)	It finds the facts set out in the following paragraphs.	
			
2.	(i)	The claimant was employed by the respondent company from 5 April 2004 until 29 October 2007.  She was a part-time employee in the respondent’s Lisburn store.  At the time of her dismissal she was working as a dot.com shopper, ie a personal shopper for customers who ordered their goods on the internet.	
			
	(ii)	She sustained an injury at work on 6 March 2007.  A pallet fell on her leg causing her to twist, and fall, and injure her left knee.  (That injury is the subject of a personal injuries claim against Tesco.)  She was off work for a period of three weeks from 7 March 2007.  She returned to work on 28 March 2007 and was then absent again because of her injury until the date of her dismissal.	
			
	(iii)	The respondent company has a policy on Prolonged Absence from Work.  That policy had been agreed with the trade union side, and in these proceedings its fairness was not disputed.  The policy document recognised that the needs of the business had to be balanced against an employee’s need to recover his or her health.  It also recognised that the company could not support workers who were on prolonged absence indefinitely, and set out typical maximum timescales during which the company would support an employee.  Where an employee had more than two but less than five years employment (as was the case with Mrs Fletcher) the typical maximum length of support was a period of six months.	
			
	(iv)	The respondent company’s managers met with the claimant on a number of occasions to monitor the situation.  In the course of these meetings – which we refer to in more detail below – it was explained to her that prolonged absence could lead to the termination of employment.  There was discussion of other suitable employment, and of a possible return to work programme based on lighter duties.	
			
	(v)	At a meeting on 27 August 2007, the claimant expressed optimism that she might soon return to work, but this optimism turned out to be misplaced.  On 8 September 2007 she telephoned the store to inform her employer that her doctor had given her a sickness absence certificate for another twelve weeks, and that he would not be happy with her returning to work before she had a scan.  	
			
	(vi)	On 17 October 2007, store management received a report from the company’s Occupational Health Adviser.  This was prepared at the request of Mrs Martin, the HR Manager at the Lisburn store, and was based on information received from the company doctor on 8 October 2007.  The report indicated that the claimant was awaiting a MRI scan.  While she had had physiotherapy which had improved her mobility slightly, she continued to have pain and swelling and found it difficult to stand for long periods or to walk short distances before her knee began to swell.

The doctor considered that the claimant would be unable to return to either a sedentary or mobile job at that time.  No appointment had been made for a scan and there was a possibility that surgery could be required.  If the claimant underwent surgery, it was likely to be four to six weeks afterwards before she could return to work.

Because the claimant remained unfit for work, the doctor had been unable to identify any adjustments which could have facilitated a return to work.

However, her long-term prognosis was assessed as good.	
			
3.	(i)	On 25 October 2007, Mr Gilvary and Mrs Martin held a further meeting with the claimant at her home.  At that meeting the claimant was asked if there was any further relevant information she could provide.  It became clear that no date had been arranged for surgery, and that any MRI scan would not take place until after Christmas.  If she did not get a scan, then her GP would sign her off sick for another 12 weeks.  It was also clear that the claimant still could not stand for long periods, and that a change of hours, or department, would make no difference.

There was discussion of the approaching, busy, Christmas period, and of the implications of her continued absence for the store and her fellow workers.  The claimant accepted that staff absences put pressure on remaining workers.	
			
	(ii)	At the meeting on 25 October 2007, Mr Gilvary and Mrs Martin gave the claimant a letter requiring her to attend a disciplinary meeting with them on Monday 29 October 2007.  This was a template letter which they had brought along to her home.  The date had been left blank, as had the date and time of the proposed meeting.

They filled in these details when they decided, after meeting her, that a disciplinary meeting was appropriate.  Before they gave her the letter, the claimant had allowed them some time on their own in her living room so that they could decide on an appropriate course of action.	
			
	(iii)	We accept the evidence of the respondent company’s witnesses that it was as a matter of convenience that they took the template letter with them on a home visit, and that it was their intention to give it to the claimant only if they decided that a disciplinary meeting was an appropriate course of action.

We accept that the outcome of the meeting had not been a foregone conclusion, and that they came to that meeting with open minds.

However, we think that the use of a template letter in this and other situations had the unfortunate and understandable consequence that Ms Fletcher was led to believe that the company wanted rid of her.  This was particularly so where there did not appear to be any template for possible alternative courses of action, such as offering further support to the employee.	
			
4.	(i)	The disciplinary meeting took place on 29 October 2007.  There was still no prospect of a return to work in the near future, and the medical prognosis remained the same.  Possible alternatives were again discussed, such as reduced hours or different work, but it was clear they were not feasible.  Mr Gilvary and Mrs Martin took the view that the options open to them were to dismiss the claimant on the ground of ill-health, or to offer her a period of longer support.  The latter option was contained in the company’s Prolonged Absence Procedure, which provided that where an employee was absent from work because of an injury sustained at work, “extra lenience should be considered”.	
			
	(ii)	The decision which was made was to dismiss the claimant.  The discussion which preceded this decision lasted no more than ten minutes.  However, there had been no real change in the ongoing situation.

In dismissing the claimant, Mr Gilvary and Mrs Martin disregarded her attendance record prior to her accident at work, which the company did not consider to be good.  (In fairness to the claimant, it has to be stated that she did not consider her sickness absence level to be excessive.)

We also find that, when dismissing her, they did not take into account an earlier allegation of misappropriation of company property which had been made against the claimant.  The allegation does not appear to have been substantiated, and in any event, no action had been taken against the claimant.  Nor do we accept the claimant’s allegation that she was dismissed because management had a grudge against her because of a complaint by her against a store manager.  Mr Gilvary had no knowledge of any such complaint.	
			
5.	(i)	The tribunal must now consider whether the claimant’s dismissal was fair or otherwise.	
			
	(ii)	In performing this task the tribunal should consider whether it would have been reasonable to expect an employer to wait any longer before dismissing, having regard to various factors such as the nature of the illness, the actual and potential period of absence, the circumstances of the employee, the need to fill the employee’s job, and the size and nature of the employer’s business.

It should have regard to whether the employer has consulted the employee, discussed the nature of his or her condition, and whether or not the employer has carried out whatever investigations are necessary to establish the true facts of the case.

The tribunal has to balance the employee’s need for time to regain his or her health against the business needs of the employer.

See generally:-

East Lindsay District Council  v  Daubney [1977] ICR 566; [1977] IRLR 181; 

Spencer  v  Paragon Wallpapers Ltd [1977] ICR 301; [1976] IRLR 373; and

Smith and Woods Employment Law (9th Edition) pp 504 – 508.	
			
	(iii)	Where the employer is a large one, it should consider the possibility of alternative, or lighter, work for the employee, though even in a large organisation, there is no obligation on the employer to create a new post for the employee (Merseyside and North Wales Electricity Board  v  Taylor [1975] ICR 105; [1976] IRLR 600.

Where the incapacity is the fault of the employer, the rules regarding dismissal may have to be applied more sympathetically (Edwards  v  Governors of Hanson School [2001] IRLR 733), but even the fact that the employer has caused the incapacity in question does not preclude him forever from dismissing the employee (McAdie  v  Royal Bank of Scotland [2007] IRLR 895).  In this case the employer has not conceded that it was at fault as far as the claimant’s injury is concerned, but its policy does take account of accidents at work, without specifically mentioning the issue of fault.	
			
6.	(i)	In the case before us we are satisfied that the employer did carry out a proper procedure.  As stated, its policy had been agreed with the trade union side and it was never suggested that there was anything intrinsically unfair about it.

The respondent company’s managers met with, and consulted, with the claimant, they took into account the medical evidence, and they discussed with her alternatives, such as shorter hours and lighter duties.  At the time of her dismissal, there was no indication that the claimant could return to work in any capacity in the foreseeable future.	
			
	(ii)	It was argued on behalf of the claimant that Tesco was a large employer, with about 9,000 staff in Northern Ireland and profits of £30 – 35M per annum.  The claimant occupied a relatively junior position, and it would only have taken minimal time to train someone to do her job.  In a company with a high staff turnover, the claimant could have been brought back to work at a later stage.  

We do not accept this.  The company took the view that it had to have a fair and consistent approach towards absent employees.  Absenteeism created problems for remaining employees (something the claimant herself acknowledged) and for customer service.

We find that this was a view which it was open to a reasonable employer to hold.	
			
	(iii)	It was also contended by the claimant that Tesco could have paid for her MRI scan.  We do not consider this to be a reasonable suggestion, and it underestimates the expense of providing such assistance, even in a large company, where the situation which arose in relation to the claimant was presumably not an infrequent one.	
			
	(iv)	It was also contended by the claimant that Tesco focussed its attention on the period of six months’ absence, without considering any possible extension.  Mrs Martin agreed that the emphasis was on the six month period.  This was not unreasonable, for that was the standard applicable period laid down for the claimant’s situation by the company’s policy.  However, the possibility of an extension was considered, and indeed the six month period was not applied rigidly in the claimant’s case, but was extended for some four to five weeks after the maximum period had expired.  The claimant was obviously unhappy that she was not given more time.  However, there was no certainty about when she could return to work.  Had her MRI scan on the NHS been imminent, we are satisfied that her dismissal would have been postponed.	

			
7.	(i)	Overall, we are satisfied that the decision to dismiss the claimant was one which a reasonable employer could have made.  It was both substantively and procedurally fair.	
			
	(ii)	Had we found that the dismissal was procedurally unfair we would have relied on Article 130A(2) of the Employment Rights (Northern Ireland) Order 1996, as substituted by Article 23 of the Employment (Northern Ireland) Order 2003.

This provides that, apart from a failure to follow the statutory dismissal procedure, a failure by the employer to follow a procedure in relation to the dismissal of an employee shall not be regarded as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

Medical evidence before us shows that in June 2008 the claimant was still unfit for work.  Consequently, if the employer had waited for a longer period before making a decision, it is clear to us that the decision would still have been the same.	
			
	(iii)	We dismiss the claimant’s claim.	

Chairman:

Date and place of hearing:	23 September 2008, Belfast

Date decision recorded in register and issued to parties: