THE INDUSTRIAL TRIBUNALS 

CASE REF:    1459/13    

CLAIMANT:	Tamara Rulova

RESPONDENT:	Re-gen Waste Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the tribunal also upholds the claimant's claim in respect of notice pay.  

Constitution of Tribunal:

Chairman:	Mr J V Leonard

Members:	Mr B Heaney 
	Mr B Schofield

Interpreter:	Mrs S McGuigan

Appearances:

The claimant appeared and represented herself (by means of an interpreter).

Mrs M Lavery of the respondent company appeared for the respondent.

REASONS

1.	By claim dated 7 August 2013 and received by the Office of the Tribunal on 8 August 2013, the claimant claimed against the respondent unfair (wrongful) dismissal and notice pay.  By response dated 10 September 2013 and received by the Office of the Tribunal on that date, the respondent confirmed that the claimant had been an employee of the respondent and stated that the claimant had been dismissed from employment on grounds of persistent short-term sickness, failure to follow sickness reporting procedures and unauthorised absence.  The assistance of an interpreter was provided and the hearing was conducted by the tribunal with the proceedings being fully translated by the interpreter for the benefit of the claimant’s understanding of matters.  The tribunal heard oral evidence from the claimant and on behalf of the respondent from Mrs Martina Lavery, an employee of the respondent responsible for Human Resources.  The tribunal also was provided with documentation in the form of agreed bundles of documents.  On the basis of the evidence the tribunal established material facts in order to determine whether or not the claimant’s claims were well-founded.  The tribunal did not have sufficient evidence in order to determine fully the matter of remedy in respect of which further information and evidence is needed.  This decision is confined to the matter of liability only, for that reason.

THE TRIBUNAL’S FINDINGS OF FACT

2.	In consequence of the oral and documentary evidence before it, upon the balance of probabilities the tribunal made material findings of fact as follows:-

	(1)	The respondent is a limited company which operates a commercial recycling operation from premises located in Newry, County Down.  Part of this operation involves a system whereby a number of operatives, about seven or eight persons working at any one time, are tasked with picking various recyclable items off a conveyor belt.  These items are then appropriately stored and packed and, as the tribunal understands it, the resultant packed product is then exported in order to generate a commercial profit for the respondent.  The respondent has a substantial workforce, as the work is labour-intensive.

(2)	The claimant, who is Latvian, commenced employment with the respondent on 4 August 2011.  On 10 August 2011 the respondent provided to the claimant a copy of the respondent’s “Employee Handbook” (referred to hereafter as “the Handbook”).  There was also a separate document, called “Contract of Employment.  Plant Operatives”, relating to the claimant’s employment (referred to hereafter as “the Contract Statement”).  That Contract Statement was signed by the claimant on 10 August 2011; however a copy was not provided to her, but rather only a copy of the Handbook.  The Handbook, amongst other matters, provided for a sickness absence policy.  That policy is set out at pages 13 and 14 of the Handbook.  The Handbook also specified a disciplinary procedure which is stated at pages 15-17 of the Handbook. 

(3)	These written terms set out in the Handbook expressly state, at the start of the disciplinary procedure section, that this specified procedure is not intended to be contractual and that it does not form part of the employee’s contract of employment.  Notwithstanding this, the claimant’s Contract Statement, at Clause 10, refers to absence from work and sickness and that expressly is referenced to the provisions of the “staff handbook”, that reference of course being to the Handbook. At Clause 13 the Contract Statement refers to the Disciplinary and Grievance Procedures that are set forth in the “staff handbook” (i.e. the Handbook).  Whilst the Handbook provisions relating to disciplinary procedure are expressed not to form part of the employment contract, nonetheless it is to be noted that these provisions in the Handbook are expressly referenced in the Contract Statement and accordingly that latter cannot be read and interpreted in any meaningful way without also referring to the Handbook.  

(4)	At no time throughout the course of the employment was the claimant ever provided with a copy of her Contract Statement; a copy of that was not provided to the claimant until after the employment had come to an end.  The initial contractual remuneration stated in the Contract Statement was £5.95 per hour.  This increased at some point (possibly coinciding with the increase in the National Minimum Wage) to £6.19 per hour.  The tribunal endeavoured to assess from the documentary and the oral evidence the length of the normal working week.  Whilst the respondent endeavoured to suggest to the tribunal in evidence provided by Mrs Lavery that the typical working week was 37 hours, upon further close examination by the tribunal of the documentation provided in evidence, that appears to indicate that a typical working week for the claimant was indeed well in excess of 50 hours per week and work was conducted over six days in the week.  Accordingly, in view of the apparent disparity between the oral evidence and the situation which apparently prevailed as revealed in the documentation, which was closely inspected after conclusion of the oral hearing, further information and evidence is needed in order to clarify matters for the purposes of remedy in the case.  That, however, does not directly concern the issue of liability,

(5)	The claimant’s assigned duties involved “picking” of items from the conveyor belt.  The respondent’s management appears to have had no issues of concern relating to the claimant’s efficiency and work performance.  However, it appears that in late 2012 (or, as the claimant stated in her evidence, early 2013) a manager or supervisor did raise with the claimant an issue regarding her taking leave of absence on account of illness.  The claimant described to the tribunal what she referred to as being just like “friendly advice” from her manager or supervisor (Rafal Pomsis) that she was taking off too many sick days. The claimant did not take this in any manner to constitute a formal verbal warning given to her. It is noted that the respondent’s Disciplinary Procedure as set out in the Employee Handbook (at page 15) provides in regard to “Minor Misconduct” for any verbal warning to be: “ recorded and retained on file for a period of six months”.  For anything requiring a formal disciplinary procedure there is stated a specified formal procedure.  That formal procedure involves an investigation, the notification to the employee in writing of any allegations and a formal disciplinary meeting is then to be held. In respect of anything that might have been discussed between the claimant and her manager or supervisor, that was certainly not a formal verbal warning administered by the manager or supervisor to the claimant complying in any manner with the prescribed procedure.  There was documentary evidence produced by the respondent consisting of a photocopied diary entry dated Monday 3 December 2012.  In that the following words appear: “Tamara returned to work after a week off…. She said that she was sick for a week and now she was fit get back to work.  I gave her a verbal warning for absenteeism without explanation which is major misconduct and told her if that behaviour happen again we are going to start formal disciplinary procedure against her”.  The author of that diary entry was not precisely identified to the tribunal nor was that person called to give evidence.  The tribunal did not receive into evidence any documentary or other evidence regarding any formal warning of any nature issued to the claimant at this time in regard to the specified procedure.  Any relevant manager or supervisor was not called to give evidence concerning this matter.  Accordingly, the tribunal accepts without any difficulty the account of things as provided by the claimant that the claimant did not take any of this to constitute a formal verbal warning given to her or disciplinary action taken against her.  For this reason the fact is that the claimant had not been subject to any prior formal disciplinary warnings, proceedings, or sanctions in this employment at the time when the events that not follow transpired, which events would lead to the dismissal of the claimant.

(6)	The Employee Handbook provides (at page 13) for a Sickness Absence policy.  It is provided that the employee must, on the first morning of sickness absence, telephone the company and speak with the line manager as soon as possible and no later than one hour after normal starting time.  Details of any illness are to be provided and an estimation of likely fitness to return if the illness is minor.  For an absence of seven consecutive calendar days or less the specified requirement is to telephone the line manager on a daily basis and to complete a self-certification form upon return to work.  For an absence of more than seven calendar days a doctor’s certificate must be obtained and submitted, on a weekly basis if applicable.  It is also provided in the policy that persistent short-term sickness absence, in the absence of any underlying medical condition or other reasonable excuse, shall be a disciplinary matter and will be dealt with in accordance with the disciplinary procedure. 

(7)	The claimant on 29 January 2013, using the proper form provided by the respondent, applied for holiday leave for a period of “10 days” from the stated date of “1 May” until “10 May”. Permission was granted on 1 February 2013 and the evidence of that permission is that the holiday leave request form was dated 1 February 2013 and was initialled by a manager or supervisor (however neither the claimant nor Mrs Lavery were able precisely to identify the manager or supervisor in question).  The veracity of that leave was not in issue as between the parties.  The claimant duly went on leave, out of Northern Ireland, at the start of May 2013.  She returned to Northern Ireland at the end of the leave period and she believed that she was on authorised leave on 10 May 2013.  On 10 May 2013 the claimant received a text message from the manager Rafal stating that she was not to report to work on 11 May 2013 (which she had believed to be a working day).  She was concerned and she attended the workplace and spoke with her supervisor, Lukasz Karpiel, and she explained when she was informed that she ought to have been at work on 10 May 2013 that it was a misunderstanding as she had believed that the 10 days of leave had included 10 May 2013.  She next reported for work on 13 May 2013 and she was handed a letter by Lukasz Karpiel at the start of the day’s shift at 6.00 am.  She was asked to sign a receipt for that letter which she did on that date.  The letter was dated 10 May 2013 and was from Mrs Lavery.  It required the claimant to attend a disciplinary meeting on 13 May 2013 at 3.30 pm in regard to: (1) Persistent Short Term Sickness; (2) Failure to notify the line manager of absence and (2) Un-authorised absence.  The claimant was stated to be entitled to be accompanied by a fellow employee or trade union official and it was stated that the outcome could be termination of employment.  No other information or documentation was provided to the claimant in advance of the meeting.

(8)	The claimant attended the disciplinary meeting on the afternoon of 13 May 2013, which meeting was also attended by Mrs Lavery, who conducted the meeting, together with an employee, Maris Prijecis, who acted as an interpreter.  The claimant appears to have understood, at least in general terms, what was discussed at the meeting.  At the meeting the claimant was provided with some information concerning her sickness absences.  From her evidence, the claimant stated to Mrs Lavery at the meeting that on all dates of absence either her partner or her brother, who both also worked for the respondent, had given notice of her illness.  The claimant also questioned whether she had been off so many days as was stated.  Then the topic was raised by Mrs Lavery concerning the claimant’s absence from work on 10 May 2013.  The claimant stated that she had explained to her line manager why she had been absent (the misunderstanding concerning her return date in regard to 10 May 2013) and Mrs Lavery stated that she had no record of any conversation between the claimant and her manager regarding that. In her evidence Mrs Lavery stated that the disciplinary meeting was called to deal both with the claimant’s sick record and also with the circumstances surrounding the claimant’s failure to attend work on 10 May 2013.  Regrettably, if a note was taken, no written note of the meeting was made available to the tribunal.  Accordingly the tribunal was reliant upon the rather sparse detail provided in the oral evidence of Mrs Lavery and from the claimant concerning what precisely was discussed at the meeting. 

(9)	The details in respect of the claimant’s sickness absence were contained in a document entitled “Summary of Sick Record – Miss Tamara Rulova”, covering the period from 1 October 2012 to 14 April 2013.  The tribunal noted that there were 21 days of absence (in one of which the claimant started work but left early).  That was made up of four periods of sickness absence of more than one day and six single days.  

(10)	After the conclusion of the disciplinary meeting, in accordance with her evidence, Mrs Lavery discussed the matter with the Managing Director, Mr Joseph Doherty.  She stated that Mr Doherty felt that the explanation provided by the claimant was not acceptable.  Mrs Lavery in her evidence made it clear to the tribunal that it was Mr Doherty who made the ultimate decision to dismiss the claimant after the disciplinary meeting had concluded.  A letter dated 14 May 2013 signed by Mrs Lavery was sent to the claimant confirming the outcome of the disciplinary meeting as dismissal.  The reasons for the dismissal were stated as being (1) Persistent short-term sickness; (2) Failure to notify the line manager of absence in accordance with company policy; and (2) unauthorised absence following a period of holiday leave.  The claimant was summarily dismissed, without notice or pay in lieu of notice.  A right to appeal was afforded. 

(11)	When questioned in reference to the various categorisations of misconduct set out in the respondent’s Handbook, “Disciplinary Procedure” – “minor”, “major” (which categorisation expressly included “absenteeism without explanation”), or “gross” (which expressly referred to offences “..so serious that an employee who commits them will normally be summarily dismissed..”), Mrs Lavery appeared to have some difficulty in applying any particular categorisation, but she did state that the respondent had no alternative but to dismiss. 

(12)	The claimant exercised her right of appeal.  She wrote by letter dated 22 May 2013 and provided an explanation for the sickness absences which she stated to be due to mostly colds and flu related to drafts and cold windy work premises.  She stated that she has submitted self-certification forms in accordance with the proper procedure.  She stated that her line manager had always been notified through other work colleagues who could confirm that the information had been passed on to the line manager.  She stated, in regard to the allegation of unauthorised absence following a period of holiday leave, that that was due to a misunderstanding and that she had made her best efforts to explain to her line manager.  She highlighted that she had never been previously subject to disciplinary action and that she was surprised at the action taken.

(13)	An appeal meeting was held on 4 June 2013.  This was chaired by Mr John Murphy, the respondent’s Logistics Manager.  A lady called Danielle took written minutes and Edite Muceniece was present as employee’s translator.  A copy of the notes of this disciplinary appeal meeting was made available to the tribunal.  The claimant at this meeting raised with Mr Murphy the matters referred to in her appeal letter of 22 May 2013.  To that she added a number of additional issues, including the categorisation of what constituted a short-term sickness absence (between 4-7 days) of which she asserted up to 4 were allowed in any year, and that she had only been ill, she stated, for more than 4 days on two occasions; that she had had difficulty in filling in annual leave forms; that she had spoken with her line manager to sort out the misunderstanding about her day off on the day in question (which issue Mr Murphy stated he would follow up); that there had not been enough time to prepare for the disciplinary hearing and that the translation had been inadequate at the meeting; that the reasons for dismissal were inadequate and that, in accordance with the Handbook, she should have been given a warning.  The tribunal had no evidence that Mr Murphy followed up and enquired into any of the issues that had been raised by the claimant in the course of the appeal meeting. 

(14)	According to the evidence of Mrs Lavery, Mr Murphy discussed what transpired at the appeal meeting with Mr Doherty and the ultimate decision-maker of the outcome of the appeal, as far as Mrs Lavery was concerned, was Mr Doherty.  In the absence of any other evidence or information, the tribunal does accept that this was indeed the case.  Rather than give detailed reasons for the outcome of the appeal, by letter dated 10 June 2013 Mr Doherty confirmed to the claimant that the decision taken by Mr Murphy who had conducted the appeal was that the decision to terminate the claimant’s employment still applied.  Accordingly the tribunal had no information at all as to how the respondent addressed any of the issues raised by the claimant in the appeal.  The tribunal does not need to record any further findings of fact in this decision to determine the liability issue in the matter. 

THE APPLICABLE LAW

3.	In respect of the claimant's claim for unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal.  The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, the conduct of the employee (invariably referred to as “misconduct”) and capability.  The guidance bearing upon the application of these statutory provisions is derived from a number of leading cases.  In matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods  v  Jones [1982] IRLR 439 in respect of which guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in Dobbin  v  Citybus Ltd [2008] NICA 42 (see further Antrim Borough Council  v  McCann [2013] NICA 7).  The tribunal in the exercise of its function is therefore very clearly required to be guided by Iceland.  Therein the guidance (per by 
Browne-Wilkinson J and bearing in mind that the statutory provisions referred to are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now a “neutral” burden of proof) is stated as follows:- 

(1)	The starting point should always be the words [of section 57(3)] themselves;

(2)	In applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	In many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;”

	The case of British Home Stores Ltd  v  Burchell [1980] ICR 301, provides guidance in regard to what is now well-settled law, in regard to conduct cases, to the effect that it is necessary for any tribunal to determine:-

(i)	whether the employer had a genuine belief in the guilt of the employee;

		(ii)	whether it had reached that belief on reasonable grounds;

		(iii)	whether this was following a reasonable investigation; and

(iv)	whether the dismissal fell within the range of reasonable responses in light of that misconduct.

In the case of Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was clarified that the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss.  The reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.  The duty of the tribunal is accordingly to review the decision-making of the employer based upon material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell and then to decide if the dismissal fell within the band of responses of a reasonable employer.  The focus of the tribunal must be objective at all times.

THE TRIBUNAL’S DECISION

4.	In this matter, the employment was subject to written terms and conditions.  These terms (“the Contract Statement”) were signed by the claimant, but a copy of the Contract Statement was not provided to the claimant until after the employment had been terminated.  The claimant, however, was given a copy of the respondent’s “Employee Handbook”.  That Handbook was described as not having any contractual force and, curiously, this is so despite the terms of the Employee Handbook being, both by implication and also expressly, imported into the Contract Statement by virtue of certain terms which have been mentioned in a little detail above.  The Employee Handbook contains a disciplinary procedure and a sickness absence policy.  Notwithstanding the purported exclusion, the tribunal must construe these terms as having some contractual force.  That is so, as there is no disciplinary policy nor any sickness policy other than the specific terms mentioned by express reference in the other document.  Further to that, it is quite clear from the evidence that the respondent, in deciding to proceed with disciplinary charges against the claimant, placed reliance upon the Handbook procedures (and the allegation that the claimant had breached such procedures) thereby affirming that these were, de facto, regarded as having contractual force by the respondent.  Accordingly, the Handbook terms are properly to be regarded as imported into the terms of the Contract Statement.

5.	The claimant’s task was to work on a production line picking recyclable materials.  The respondent had no issue whatsoever regarding the claimant’s work performance upon the production line.  The claimant, however, was absent from work on a number of occasions.  The claimant accepts that her supervisor or manager spoke with her informally about this.  She indicated in her evidence that this was either at the end of 2012 or in early 2013.  There was never any formal disciplinary procedure invoked nor was any formal written warning ever issued to the claimant.  The claimant accordingly had no reason to believe, in the absence of any formal procedures being taken or warnings given, that she was in any way at risk of dismissal upon any grounds relating to work attendance, including sickness absence.  If the respondent had been concerned regarding the issue of absence, it did not take any formal steps to address that issue in advance of the disciplinary proceedings which ultimately resulted in the claimant’s dismissal. 

6.	The respondent commenced a procedure whereby the claimant was required to attend a disciplinary meeting.  Having been very clearly and quite unambiguously afforded approval of holiday leave in writing, the claimant was then contacted by a work supervisor or manager by text message on 10 May 2013.  She was concerned as that and she attended the workplace on that day.  Having heard the evidence, the tribunal accepts the claimant’s account of matters: she did attend the workplace on that day and she did speak with a supervisor or manager and afforded an explanation for her absence.  The claimant appears indeed to have been a little overwhelmed at things and thus seems to have been inclined to accept more blame for her absence on that day than was properly due.  The mistake was entirely that of the respondent and it was not in any way the claimant’s responsibility and the documentation clearly proves that.  On the respondent’s part there appears to have been an error or mix-up in arranging the work schedule whereby the claimant had been assigned to the work rota for 10 May 2013, whereas she had been afforded the final day of her 10-day leave period on that date. 

7.	The respondent in the case challenged whether it was correct that the claimant had attended work that day and had spoken with her supervisor or manager.  The tribunal finds that she did.  Even if the claimant had not met with her supervisor or manager on that day and had not afforded an explanation for her absence, nonetheless she very clearly raised that explanation for things at the disciplinary meeting.  That explanation was also given by her at the appeal meeting.  The allegation made by the respondent against her was the she had taken unauthorised absence on that day; the respondent appears to have made quite a substantial issue regarding this.  There is however no evidence at all that the respondent, in regard to that issue and faced with the explanation afforded by the claimant, endeavoured properly to examine if there was any validity or weight in the explanation afforded.  There is nothing suggesting that the respondent examined the issue and addressed it any fair and proper manner, as would a reasonable employer.  Had it done so it would have been discovered that the fault was entirely the respondent’s, not the claimant’s.  The respondent thus closed its mind to such an explanation and there was no reasonable and proper investigation in accordance with the proper standards of a reasonable employer.

8.	Apart from this specific issue, the tribunal harbours broader concerns regarding the manner in which the respondent approached the disciplinary process.  The claimant was informed by letter dated 10 May 2013, but that letter was only handed to the claimant for the first time on 13 May 2013.  This came “out of the blue”, as she saw it, and she was for the first time on that morning notified that there was to be a disciplinary meeting scheduled to be held in mid-afternoon of that day.  The claimant was provided in advance of the meeting with no specific information or evidence other than a brief statement of the charges to be levelled against her.  No sickness record details were provided to her in advance of the meeting to enable her to consider the information and to check matters if she had wished.  No other details were provided.  The claimant was not afforded, in the tribunal’s view, a fair and reasonable opportunity to address any specific work attendance or other information that was to be scrutinised at the meeting.  That information was of course readily available to the respondent. 

9.	Things appear to have been conducted by the respondent on that day, 13 May 2013, with an unexplained and an unaccounted for haste.  There was no explanation given to the tribunal why that was so and why the invitation to the claimant and the meeting were required to be conducted on the same day.  In the absence of any specific evidence, perhaps by way of a note or record of the meeting, this seems to have been a relatively brief meeting.  The claimant certainly raised issues.  For example she challenged the accuracy of the absence records; she indicated that she had properly followed the self-certification procedures; she stated that she had arranged for work colleagues to notify her sickness absence to management.  These matters that were raised by her suggested possible further investigation into certain aspects of the charges that had been levelled against her.  There is no evidence of any proper and conscientious further enquiry being conducted as a result of issues raised by the claimant prior to Mrs Lavery bringing matters to the attention of Mr Joseph Doherty, the Managing Director.  Again, the respondent closed its mind to any reasonable investigation in accordance with the standard of a reasonable employer, viewed objectively.

10.	It is clear from the evidence of Mrs Lavery that Mr Doherty was the ultimate decision-maker in respect of this part of the disciplinary process.  Mr Doherty had not been present at the hearing but nonetheless he made the decision upon some manner of a report (probably verbal for there was no evidence of any written report) made to him by Mrs Lavery.  As a result, the claimant was summarily dismissed, without notice or pay in lieu of notice.  

11.	The claimant was afforded a right of appeal, which right she chose to exercise and she set forth some issues of appeal in a letter dated 22 May 2013.  In this letter the claimant expressly provided explanations in regard to the reasons for dismissal.  She stated that the persistent short-term sickness was mostly colds or flu which related to the working conditions in what she stated to be, “draft, cold and windy work premises”.  She stated that she had submitted self-certification forms according to the Employee Handbook for all these sicknesses.  She stated that upon receipt of the sickness record sheet (which she had not at that time received) she could further justify any of the recorded absences.  Regarding the issue of failure to notify the line manager of absence as alleged, she stated that her line manager had always been notified by colleagues, who could confirm that this information had been passed on to the line manager.  Regarding the allegation of unauthorised absence following a period of holiday leave, she stated this was due to a misunderstanding and that she had made her best effort to explain this to her line manager.  

12.	The appeal was conducted by Mr John Murphy, a senior manager of the respondent, being the respondent's Logistics Manager.  The tribunal was provided with a written record of the appeal meeting. That record serves to confirm that the claimant did raise with Mr Murphy not only the matters referred to in her letter of 22 May 2013 requesting the appeal, but also certain additional issues, including the matter of classification of what constituted short-term sickness absences and matters relating to the proper context in which her absences ought to have been seen.  She also talked about the lack of adequate explanation of how to fill in annual leave forms.  She raised the issue that there had not been enough time to prepare for the disciplinary hearing and that the translation had been provided by a person with poor English language skills and that she did not understand that she was being “fired”.  The claimant made the point that she did not consider that any of these reasons for dismissal was sufficient and that according to the Handbook she should have been given a warning.  The claimant stated very clearly that she had spoken with her line manager to sort out the misunderstanding about her day off on 10 May 2013.  In regard to that latter issue it is recorded that Mr Murphy stated to her that he would follow this up, together with some other matters raised by her at the appeal meeting.  However, there is no evidence that Mr Murphy ever did do so in regard to the specific issues as he had promised. Indeed there is, in general terms, no evidence that Mr Murphy, in any fair, proper and conscientious way, did follow up or conduct any further investigation or enquiry into the any of the various matters raised or emerging in the appeal. 

13.	As far as Mrs Lavery is concerned (and that is regrettably the only evidence available to the tribunal) Mr Murphy then reported matters to Mr Doherty by some means.  Mr Doherty was, yet again, the ultimate decision-maker and it was he who determined the outcome of this appeal.  Mr Murphy was not called as a witness to the tribunal, nor was Mr Doherty, to account for the thinking and reasoning of the respondent in upholding the decision to dismiss and in rejecting the claimant’s appeal.  There is accordingly no evidence afforded of any proper consideration or thought being applied to any argument advanced or matter raised by the claimant in the appeal; there is simply no explanation given of the respondent’s thought processes in the dismissal of the appeal; certainly none such is provided in the very brief letter from Mr Doherty to the claimant confirming the appeal outcome.  It is therefore clear to the tribunal, on the basis of this evidence, that the appeal did nothing to constitute a proper and genuine rehearing or other revisiting or review of the matter, to afford any fresh examination of evidence, arguments or submissions, nor to afford any fresh, proper or conscientious re-examination of the issues.  A proper appeal may serve to correct procedural or other deficiencies in what has gone before but that certainly does not apply in this case (see for example Taylor  v  OCS Group Ltd [2006] IRLR 613 CA).  Indeed, the converse is also true in that if an appeal procedure is defective this will significantly contribute to rendering the dismissal unfair notwithstanding that the earlier stages may not have been so.  Mr Doherty was the ultimate decision-maker in this appeal and accordingly the appeal may be discounted as potentially affording any correction of any procedural or other irregularity in the matter.  The involvement of Mr Doherty as the ultimate decision-maker in both of the decisions is an illustration of procedural unfairness.  It is necessary perhaps to remark that, in the EAT case of Rowe  v  Radio Rentals Ltd [1982] IRLS 177, it was observed that it is not necessary that a manager hearing an appeal should also insulate himself from the manager who has recommended or implemented a dismissal.  That might be one thing, but it is an entirely different matter for a person in a managerial function such as Mr Doherty to have matters emerging from a disciplinary hearing held before another person reported to him and to take decision on dismissal and then to undertake the same decision-making task consequent upon an appeal hearing conducted by a different manager. 

14.	The tribunal then turns to the issue of substantive fairness, or otherwise.  Absence from work may take a number of different forms and may arise under number of quite different circumstances.  It is possible that an employee may be suffering from an identified and medically certified illness which causes repeated or persistent absences from employment.  In such a case, it is normally accepted, in proper industrial relations practice, that it would be inappropriate for such to be treated as a conduct issue, as opposed to a capability issue.  It is also normally accepted, however, as being inappropriate for an employer to be required to obtain detailed medical evidence if an employee has an unacceptable number of short-term absences arising perhaps from various causes (see the decision of the EAT in International Sports Co Ltd  v  Thompson [1980] IRLR 340, EAT).  Further, it is generally accepted, in regard to short-term absences arising from various causes, that, as long as adequate warnings are given, treating repeated absences as sufficient reason for dismissal is likely to fall within the band of reasonable responses of a reasonable employer.  However in cases of persistent intermittent absenteeism the employer should carry out a fair review of the attendance record and the reasons for absence, should give the employee an opportunity to make representations and should give appropriate warnings of possible dismissal if things do not improve.  The degree of latitude shown shall of course depend upon the facts in each case (see for example International Sports Co Ltd  v  Thompson where the absence level was 25% in the last 18 months of employment); in many cases there will be factors permitting a different view to be taken.  (See also Spencer  v  Paragon Wallpapers Ltd [1976] IRLR 373 EAT and East Lindley District Council  v  Daubney [1977] IRLR 181 EAT).  It is also accepted that treating genuine illness as misconduct can possibly lead to a finding of unfair dismissal (see Lynock  v  Cereal Packaging Ltd [1988] ICR 670, EAT). 

15.	Examining the absences recorded by the respondent as indicated in the documentation provided to the tribunal, these covered the period from 1 October 2012 to 14 April 2013.  There are 21 stated days of absence. In one of these the claimant started work but had left early.  Within these 21 days there are four periods of sickness absence consisting of more than one day.  The latter are, respectively and in chronological sequence, firstly, three days in sequence in October 2012, secondly, four days in sequence in November 2012, thirdly, three days in February 2013 and, fourthly, five days in April 2013.  In addition to the foregoing there are six single days recorded.

16.	The body of case law emerging from tribunals and the superior courts, viewed together with the approach normally taken in industrial relations, suggests that it is accepted in normal industrial practice that absenteeism and lateness will not normally merit dismissal for a first offence.  There might be however an exception to this general approach if such absence or lateness were to result in very significant detrimental financial or other consequences connected to a specific key post of employment.  However, there is no evidence that this post occupied by the claimant was what might be properly termed a “key post” nor that this consideration applies in any manner to this case.  Certainly Mrs Lavery did not endeavour to make out such an argument. 

17.	In the absence of any earlier formal disciplinary warnings or proceedings, the claimant was thus summoned to a meeting where the stated grounds of dismissal included her work absence record.  The tribunal is required to examine every reason stated by the employer for the dismissal, individually, and also the collective effect of these, in the application of the law to the matter.  Taken in isolation, the tribunal would have found without any difficulty, in regard to that single charge, that a dismissal for such a first offence as, “persistent short-term sickness”, without any appropriate investigation or prior warning (and in the context of no previous effective disciplinary sanction or warning) would have been substantively unfair and of itself not within the band of reasonable responses of a reasonable employer. 

18.	In that latter regard, the tribunal notes the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, at paragraph 41 (page 20).  In the Code it is made clear that the task of the employer is to assess whether absence is due to genuine illness.  If an employee might be suffering from an underlying medical condition leading to absences, both short term and longer term, the procedure used by the employer will be important to the issue of fairness.  It is stated that if a proper and fair procedure is not followed, perhaps by adequate consultation, medical investigation and consideration of other options such as alternative employment, dismissal might well be unfair.  If an underlying medical condition is assessed after adequate investigation has been conducted, the issue then becomes one of capability; the employer should take a sympathetic and a considerate approach.  These considerations are set out in the Code. 

19.	The tribunal notes that it does not appear to have been stated expressly in the disciplinary process that the respondent believed or had grounds to believe that the absence was not due to genuine illness.  Perhaps, however, that might be implied in the context of things.  There is no evidence that the respondent sought genuinely to engage with the claimant in order to inquire into and endeavour to establish the true nature and the reason, or reasons if more than one, for the various absences.  As mentioned, absences can either fall into the category of conduct or capability matters, dependant upon the particular facts which emerge after a proper investigation.  It is noted that the claimant, in the course of the disciplinary process, expressly mentioned an issue that the absences were due to colds and flu arising as a result of the working conditions.  If it was indeed felt that the absences were not genuine, and thus a conduct matter, there is no evidence that the respondent in any proper and meaningful manner sought to warn and to discipline the claimant under the applicable procedure, prior to using this specific issue as a reason for dismissal. 

20.	Turning then the issue of unauthorised absence, firstly and specifically in regard to the failure to attend work on 10 May 2013, the error or mix-up in arranging the work schedule whereby the claimant was assigned to the work rota for 10 May 2013 was entirely due to the respondent’s mistake.  The claimant had been very clearly afforded the tenth and final day of her leave period on that date.  Having been provided with that entirely plausible explanation by the claimant in the disciplinary process, the respondent, despite that and with some considerable persistence, proceeded to uphold that specific charge against the claimant. There were clearly no fair and proper grounds for doing so and the respondent set its face against giving any credence to that explanation, notwithstanding the respondent in reality being at fault.  The respondent very clearly did not wish to explore the possibility of anything other than the claimant being in default.

21.	The respondent also appears to have introduced at the time issues around the procedure used for notification of absence from work by the claimant.  The specific charge was expressed as being, “failure to notify your line manager of absence”.  The written policy in the Handbook (under “Sickness Absence”) provided for the employee to telephone the respondent and to speak to the line manager no later than one hour after the normal start time and to give details of the illness and other information.  The claimant on many occasions had adopted a practice of sickness absence notification made via other work colleagues.  According to the available evidence, that approach had never before been questioned by the respondent.  The respondent had never taken the claimant to task concerning the manner in which she had notified her absences from work and the first time this was raised was at the disciplinary meeting.  The tribunal had no evidence as to whether that was common practice, generally, or rather if it was just the particular approach taken by the claimant.  The claimant certainly raised this procedure in the disciplinary process as being the approach which she had used. In doing so the claimant appears to have suggested that it was, de facto, accepted by the employer and it was very possibly also implied that it may have been an approach used by other employees, although that is not entirely clear from the evidence.  In any event, the claimant did raise this as an issue to explain the way in which she did things and, in the proper context, that she had never encountered any difficulty in this before.  There is nothing suggesting that the respondent in any way explored, or indeed wished to explore, that explanation.

22.	In making a determination in this case, the tribunal is required to assess the collective effect of these issues brought forward as disciplinary matters by the respondent in the process.  The tribunal is consequently required to determine if the decision to dismiss the claimant for these stated reasons was fair or unfair.  In conducting that task the statute obliges the tribunal to take account of the fact that the determination of the question whether the dismissal is fair or unfair, having regard to the reasons shown by the respondent, firstly 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 these reasons as a sufficient for dismissing the employee, and, secondly, the matter shall be determined in accordance with equity and the substantial merits of the case. 

23.	As is so in any such case, the tribunal’s clearly prescribed function is to judge whether the decision to dismiss the claimant under these circumstances, viewed entirely objectively, was fair or unfair.  The tribunal is expressly forbidden in any manner to undertake the task of the employer nor to substitute its own decision for that of the employer (see Rogan  v  South Eastern Health and Social Care Trust and London Ambulance Service NHS Trust  v  Small [2009] IRLR 563).  The difficulty for the tribunal in assessing whether the decision to dismiss fell within or outside the band of reasonable responses of a reasonable employer is that the tribunal has been deprived of an opportunity to assess (except in the absence of any evidence in that regard) the quality and extent of the respondent’s investigation of the charges levelled against the claimant and evaluation of the evidence and any evaluation made concerning the claimant’s submissions and contentions raised at the disciplinary hearing and at the appeal. 

24.	The attendance of some respondent witnesses, who were not present at the tribunal hearing, might have considerably clarified matters, as key parties to the process and decision-makers.  These persons include the ultimate decision-maker, Mr Doherty, who was himself not personally present at the disciplinary hearing nor at the appeal hearing.  The tribunal has no indication as to how Mr Doherty was appraised of all the relevant facts and placed in any position to make a fair and balanced judgement.  It is most unusual to encounter any decision-maker who is not present at a disciplinary hearing nor at a disciplinary appeal and who is accordingly dependent upon some manner of a report from another party in order to make the key decision.  There is no way of assessing, in the absence of specific evidence from Mr Doherty, how he might have addressed any information or arguments as conveyed to him, nor what any such might have been, nor whether Mr Doherty took any proper steps to ensure that there was any proper investigation, perhaps revisiting, to the extent reasonably necessary, any issues raised by the claimant or any evidential gaps in the case purporting to ground the disciplinary charges faced by the claimant.  The tribunal has no way of knowing if Mr Doherty did in any way properly and contentiously take any evidence or argument into account in making the ultimate decision to dismiss; the tribunal was unaware of what information was provided to Mr Doherty to enable him to make a decision.  This applies not only to the disciplinary hearing outcome but also to the appeal. 

25.	Examining all of this, the tribunal’s conclusion is that both upon substantive grounds and also upon procedural grounds the claimant was unfairly dismissed.  This determination of unfair dismissal is made for the reason that the decision to dismiss, viewed objectively from the perspective of a reasonable employer, does not fall within the band or range of reasonable responses of a reasonable employer.  The tribunal is not satisfied that there was a fair and proper investigation conducted by the respondent in compliance with the test in British Home Stores Ltd  v  Burchell whereby any reasonable employer could have been properly satisfied of the guilt of the claimant in respect of the charges faced.  The decision was, as regards work attendance and sickness absence, grounded upon the outcome of a disciplinary hearing at which adequate information concerning the sickness record and a fair and proper opportunity to examine and to respond to the information produced by the employer and to make proper submissions from any matter arising, was not properly and fairly afforded to the claimant.  The same applies to the other charges levelled, where issues were raised by the claimant that she was indeed not in default of the specified company procedures, but these were effectively disregarded.  This is also so in respect of the appeal, where the issues raised by the claimant on appeal were, yet again, effectively disregarded.  The appeal did nothing to cure, but rather compounded, any unfairness and Mr Doherty, who had ready formed a concluded view upon whatever information had earlier been provided to him, was again the decision-maker in the appeal.  Accordingly, the decision-maker was the same in both instances and that same person brought to bear the same view that here must be a dismissal of the claimant, whatever the merits.  The dismissal was accordingly unfair both substantively and procedurally.  The claimant also raised a notice pay claim. In the light of the tribunal's finding of unfair dismissal, that claim is upheld and the matter of remedy will follow accordingly.  The tribunal shall deal further with the matter of remedy and any other outstanding issues.

Chairman:

Date and place of hearing:     22 October 2013, Belfast.

Date decision recorded in register and issued to parties: