THE INDUSTRIAL TRIBUNALS

CASE REF:	2308/16

CLAIMANT:			Ieva Strockiene

RESPONDENT:		GPH Mushrooms Ltd

DECISION 

1.	It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed.  Her claim is therefore dismissed.

2.	It is the unanimous decisions of the tribunal that the claimant is not owed any notice pay.  Her claim is therefore dismissed.

Constitution of Tribunal:
Employment Judge:	Employment Judge Browne
	
Members:			Mrs D Adams
				Ms MJ McReynolds

Appearances:
The claimant represented herself through the services of an interpreter.

The respondent was represented by Mr P Moore of MCL Associates.

THE ISSUES AND EVIDENCE

1.	The claimant worked as a farm labourer for the respondent company, picking mushrooms at its premises, from 13 December 2014 until her “zero hours” contract was terminated on 5 August 2016, on the ground of her poor attendance record.  The written contract, signed by her, included a section entitled “Hours of work (zero hours contract)”, but the claimant told the tribunal that she had never received a copy after signing it.

2.	The claimant told the tribunal that it was not a zero hours contract, because she often worked up to 87 hours per week, even though she claimed she was only being paid at a rate equivalent to £2.80 per hour worked, which is well below the National Minimum Wage.  There was no claim in connection with that assertion, although the claimant stated that she had received assistance from a Law Centre about her rights.  The claimant also described working for the respondents as involving lifting heavy weights, and that it was “like being a slave”.

3.	The claimant was repeatedly absent from work due to self-reported sickness.  The respondent produced her absence record, which included a number of entries which simply recorded “failure to attend for shift”, where she had not attended, but had not notified the respondent in advance, or provided a reason.

4.	On 17 August 2015, the claimant provided a sick note from her doctor for two weeks, but did not return until 27 December 2015, with no contact from her in that period.  The claimant stated in evidence that she had brought all of her sick lines in to the benefits office.

5.	She was advised by the respondent in writing that her statutory sick pay period had ended, and that she should seek help from her local benefits office.  The claimant then advised the respondent that the benefits office refused to pay her sick pay, because she did not have enough credits, therefore, she wanted to return to work.  The respondent’s case was that the claimant stated that she had been looking after her sick mother and that she (the claimant) had a drinking problem.  The respondent told her that her attendance had to improve; otherwise, she would not be offered any more work.

6.	The respondent permitted the claimant to return to work, but she did not start again until late January 2016, and then was absent on 31 January, 2 February, and went home at 7.00 am on 5 February.  On 13 February 2016, the claimant submitted a sick line until 29 February 2016.

7.	Throughout April 2016 and May 2016, the claimant indicated to the respondent when contacted that she was not available for work.

8.	She worked three days in June 2016, but for the remainder did not attend, allegedly due to alcohol consumption; the respondent stated that it was unable to contact her because her mobile telephone was constantly turned off.  The claimant denied that anyone had tried to contact her, and denied that she had ever been unable to work due to alcohol consumption.  The respondent produced what purported to be two diary entries to confirm that she had signed them, to confirm that she was leaving work due to being under the influence of alcohol.  There was however no reference in either entry to alcohol.

9.	On 22 July 2016, a letter was sent to the claimant on behalf of the respondent, inviting her to attend medical capability assessment at the respondent’s premises on 26 July 2016.  The claimant did not respond or attend; she told the tribunal that she had never received the letter.

10.	A second letter was sent to the claimant on 1 August 2016, inviting her to a medical capability hearing on 1 August 2016.  The claimant did not attend, and the respondent as a result dismissed her on the ground of her attendance record. 

11.	The claimant sought to demonstrate that hers was not in fact a zero-hours contract, because, on her version of events, she was working six days a week; also because her application to work just five days per week, to enable her to look after her sick mother, was turned down; and on the ground that the respondent had written to her, advising her of the termination of her contract and the reasons for such termination.

12.	The claimant also gave evidence that she had received advice from the Law Centre that she could not be dismissed for being absent from work due to illness.  She also stated that she was advised that she could not be dismissed without receiving written warnings. 

13.	The claimant was informed of her dismissal by letter dated 5 August 2016, in response to which she wrote to the respondent on 24 August 2016, asking to raise a grievance, as she alleged that the respondent had not followed the correct statutory dismissal procedure.  She also stated that she wished to appeal the decision to dismiss her.  Her appeal was dismissed and the decision to dismiss her was upheld.

14.	The claimant stated in her evidence that she had never received the two invitation letters, just the dismissal letter.  As regards any other documentation, the claimant stated that she did not understand English, and could not translate without the assistance of a friend or interpreter.

LAW AND CONCLUSIONS

15.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 states: 

“(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, and

(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it—

(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)	relates to the conduct of the employee,

(c)	is that the employee was redundant, or

(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

(3) In paragraph (2)(a)—

(a)	“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b)	“qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4)	Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

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

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

16.	The absence record of the claimant was, by any standard, extremely poor, regardless of what the reasons were.  The tribunal was not impressed by the diary entries which had been described by the respondent’s witness Danuta Stolevicine as supporting her evidence that the claimant had to go home because she was drunk.  There was no reference to it in the diary, only that the claimant was “sick”.

17.	The tribunal consider however that the claimant was very selective in her evidence.  She claimed the she had not received the invitation letters to her medical capacity assessment.  It seems inherently unlikely that, even if one had not been delivered, that both would have gone astray. 

18.	The tribunal concludes that she more likely than not received at least one, and made no effort to respond or attend.  Even if it is true that she speaks no English, she could have spoken to Ms Stolevicine, who works for the respondent and was in regular contact with the claimant, to discover what was going on and what the letter meant.

19.	It was not only the frequency but the duration of the claimant’s absences which are remarkable.  This is particularly noteworthy in the August to December absence.  It was only when her entitlement to sickness benefit came to an end that she indicated a willingness to return to work, as opposed to saying that her sickness had abated sufficiently for her to be fit to return.

20.	It also is worthy of note that she declined the respondent's offer of work in the whole of April and May, without any apparent explanation.  She denied that the respondent had contacted her at any point during that period, which raises the question as to why she did not contact the respondent, to enquire why she was not being offered any work.

21.	The tribunal is therefore of the view that the respondent’s evidence regarding April and May is more likely to be true.

22.	In the terms of Article 130 (3) (a), “capability” can include the health of an employee as a potentially lawful reason for dismissal.  The tribunal is of the opinion that, given the claimant’s repeated explanation for being unavailable was her poor health, the respondent was entitled to investigate her capacity to work at the proposed assessment hearings.  The claimant, had she attended, was advised in the two letters that she had the right to be accompanied to those hearings.  The tribunal has concluded that the claimant knew about at least one, if not both of those hearings, but deliberately ignored them.

23.	Whatever the reason for her repeated and prolonged absences, a poor attendance record can also potentially be viewed as “some other substantial reason” for a lawful dismissal. 

24.	The tribunal has concluded that the nature and small scale of the respondent’s business was such that it could not reasonably be expected to continue to tolerate the claimant’s repeated and prolonged absences.  She was, in truth, totally unreliable, although the respondent described her as being a good worker, when she was present. 

25.	Probably for that reason, the respondent permitted the claimant to return to work after her lengthy absence, but warned her that she needed to improve her attendance.  Within a very short space of time, she was repeatedly absent again, yet the respondent continually contacted her, affording her every opportunity to return to work. 

26.	In considering the fairness of the claimant’s dismissal, and whether or not it fell within the band of reasonable responses of a reasonable employer, the tribunal asked itself: what else was the respondent supposed to do?

27.	It appeared to the tribunal that the respondent had afforded the claimant every opportunity to improve her attendance record to an acceptable level.  Yet it also appeared that the more accommodation she was shown, the more she took advantage of it.

28.	The respondent belatedly attempted to establish to its own satisfaction that the reasons the claimant was putting forward as to her capacity to work were valid.  By her non-attendance, that lawful and reasonable attempt was frustrated; her complete failure even to acknowledge even one of the respondent’s letters also sent out a clear signal that she was not engaging in this lawful and reasonable process.

29.	The tribunal is unanimously of the view that the decision to dismiss her was reasonable, lawful and fair.  The claimant has therefore failed to establish that her dismissal was unfair, and it is dismissed.

30.	As regards the claim for notice pay, the tribunal has concluded the claimant has failed to establish an entitlement to such a payment.  She was dismissed at the end of a process in which she had failed to engage, which in itself was only necessary because of her repeated and prolonged absences.

31.	Within the terms of the contract of employment at paragraph 10.2, the respondent “… may at our discretion terminate your employment without notice and make a payment of basic salary in lieu of notice”.

32.	Paragraph 10.3 also states “We shall be entitled to dismiss you at any time without notice or payment in lieu of notice if you commit a serious breach of your obligations as an employee…”.

33.	The tribunal interprets this to mean that the respondent’s decision to dismiss and to pay in lieu of notice, in either of the above situations, are both discretionary.  In Cerberus Software Ltd v Rowley [2001] ICR 376, the contract stated that the employer 'may' make a payment in lieu of notice to the employee.  The Court of Appeal held that this gave the employer the choice whether or not to make the payment.

34.	It appears to the tribunal that in this case, the respondent decided to terminate the contract, by reason of dismissal, without exercising its discretion to make a payment in lieu of notice.  It therefore acted lawfully and within the terms of the contract, so the claimant’s claim for notice pay is also dismissed.

Employment Judge:

Date and place of hearing:	5 July 2017, Belfast.

Date decision recorded in register and issued to parties: