Appeal No.	 EAT/762/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 1999
Judgment delivered on 13 April 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR L D COWAN
LORD DAVIES OF COITY CBE

THE POST OFFICE	APPELLANTS

MR G A WILSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR B CARR
(of Counsel)
Messrs Watson Burton
Solicitors
20 Collingwood Street
Newcastle Upon Tyne
NE99 1YQ	
For the Respondent	MR S NEAMAN
(of Counsel)
Messrs Simpson Millar
Solicitors
101 Borough High Street
London Bridge
London SE1 1NL	

	MR JUSTICE HOLLAND: 

Introduction
	Following a hearing of the 4th February 1998, an Industrial Tribunal sitting at Newcastle upon Tyne held that the Applicant, Gary Andrew Wilson, had been unfairly dismissed by the Respondents, The Post Office.  The latter now appeal, contending that the decision is wrong in law.

The Attendance Procedure
	Central to the case is an agreement of the 30th June 1992 made between the employers, then the Royal Mail, and the union representing its employees, then the UCW.  The Agreement establishes an Attendance Procedure for use as a yardstick against which to evaluate absenteeism.  The nature of the Procedure appears from the Introduction:

“This procedure is designed to help Royal Mail serve its customers by encouraging the high standards of attendance normally achieved and maintained by the vast majority of employees so that a reliable staffing base can be maintain.  It
- applies to frequent and/or lengthy absences from work (whether covered by a Self-Certificate or a Doctor’s Certificate) because of medical conditions which do not justify Medical Retirement:
- applies to all employees of Royal Mail except casual/seasonal staff:
- consists of a series of stages at which employees will be encouraged, through advice and guidance given at an interview, to improve their pattern of attendance.
The stages are progressive and specifically intended to help employees maintain appropriate patterns of attendance, and so avoid formal action which may lead to dismissal.
At every stage of the procedure there is an opportunity for employees to provide an explanation for their absence(s) and for mitigating factors to be fully taken into account.  Accidents which happen in the course of Royal Mail work would normally be discounted, as would absences incurred by disabled employees, which in the view of the OHS, are directly connected to their disability.
Minimum national standards of attendance are built into each stage so that employees clearly understand what Royal Mail requires.
No employee will be dismissed on grounds of unsatisfactory attendance if Royal Mail’s standards of attendance are consistently achieved.  However, those minimum standards are not intended to have the status of an entitlement.  Employees will need to demonstrate - by meeting the customary requirements on notification and certification of absence - that the absence was necessary.  Deliberate abuse of these provisions will constitute misconduct and may result in disciplinary action.”

	The balance of the Attendance Procedure establishes and explains a three stage arrangement.  Stage 1 is triggered by the first manifestation of unsatisfactory attendance on the part of an employee and involves the giving of an informal warning and advice.  As to Stage 2:  “..... if an employee who has been given an Informal Warning fails to make the required improvement they should be called to a formal interview.”  It is envisaged that the demands by way of specific improvement should be spelled out and the employee should be formally warned that a failure to reach an acceptable standard would raise a liability to dismissal.  That then leads to Stage 3:  “.....if, after receiving a Formal Warning, there is insufficient improvement in the employee’s attendance and the manager dealing considers that dismissal maybe appropriate the employee ..... should be invited to put forward reasons why they should not be dismissed.”  Stage 3 further embraces provisions for an interview, for the possibility (facts permitting) of a medical retirement and for an appeal against a Stage 3 dismissal, that is, a dismissal on ground of unsatisfactory attendance.

The Facts
	Since 1995 the Applicant was a permanent employee of the Respondents, working as a postman.

1995 - He had two absences from work, involving a total of sixty-five days.  One such reflected an injury in the course of his employment and was thus outwith the Procedure.

1996 - He had one absence extending for twenty-five days, attributed to a toe injury.

17th February 1997 - After a further thirteen day absence with a viral illness he received a Stage 1 Informal Warning.

20th June 1997 - After another two absences, for respectively one day (upset stomach) and two days (chest infection) he received a Stage 2 Formal Warning.  The crucial terms were “If your attendance does not improve and you either incur two separate absences or a total of ten days or more in any six month period during the twelve month period following receipt of this letter, consideration will be given to progressing to Stage 3 of the attendance procedure which will lead to consideration of termination of service on the grounds of unsatisfactory attendance.”  It added that if his attendance performance improved then he would revert to being subject to the Stage 1 warning.

October 1997- The Stage 3 procedure was initiated on the basis of a further absence (by reason of a neck injury sustained when playing football for a Post Office team) extending to ten days.

28th October 1997 - The Applicant was given five weeks notice of termination of his employment, that is, to the 2nd December 1997.

31st October 1997 - A complaint of unfair dismissal initiated.

2nd December 1997 - His employment terminated.

15th December 1997 - An appeal procedure resulted in the decision to dismiss being upheld.

The Tribunal
	At an early stage in the Extended Reasons the Industrial Tribunal identified its first concern as dictated by Section 98 Employment Rights Act 19965, that is, as to the ‘reason for the dismissal’.  Thus:

“Section 98(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 subsection (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 subsection 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 an enactment.”

	Then it directed itself “Section 98(4) requires the Tribunal to consider the reason for the dismissal and to decide ‘whether in the circumstances ..... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee’.  Therefore the Tribunal can only consider the question of fairness in the context of the reason found for the dismissal”.

	In the event the Industrial Tribunal found that the reason for the dismissal fell within Section 98(2)(a) in that it related to “the capability ..... of the employee for performing work of the kind which he was employed by the employer to do.”  The Industrial Tribunal then reviewed various factors which, as it found, bore upon the fairness of a dismissal for that reason and concluded that the dismissal was unfair, that is, it was not within the range of responses open to an employer acting reasonably.  In reaching its conclusion the Industrial Tribunal added:

“16.  More fundamentally for the general application of the agreement, the Tribunal was not satisfied that where the reason of dismissal was capability on the grounds of health, the respondent had acted reasonably in concluding it should dismiss, where the applicant was declared fit by the respondent’s doctor, was given and worked five weeks notice and had no underlying or chronic condition which caused repeated absences.  Had it been open to the Tribunal to find that the applicant had been dismissed on grounds of conduct its conclusion on fairness might have been different.  However, such a finding would be against the weight of the respondent’s evidence.
17.  The Tribunal found in essence that, although the respondent had dismissed on grounds of capability, it was not open to the respondent on the facts of this case to conclude that the applicant was incapable of doing his job.  That, it seems to the Tribunal is a necessary consequence of the terms of the agreement, although the outcome may not be what the respondent intended it should be.”

	To those paragraphs we will give further consideration in due course.

This Appeal

	On behalf of the Respondents, Mr Bruce Carr took several points of varying weight;  one such was that the Industrial Tribunal had incorrectly identified the ‘reason’ for the purposes of their application of Section 98 and thereafter had, as it were ‘painted themselves into a corner’, being forced into a decision that reflected logic rather than reality.  For the Applicant, Mr Neaman submitted that the Extended Reasons disclosed no error of law and should be upheld.  

	For our part, we are satisfied that that essential submission of Mr Carr is well founded.  In paragraph 1 of the Extended Reasons the Industrial Tribunal correctly set out the essential contention of the Respondents:  “The Respondent admitted dismissal but said that the Applicant had been dismissed for excessive absences which was governed by an agreement between the Respondent and the Communication Workers Union (C.W.U.)”.  We say ‘correctly’:  that is plainly the basis of a dismissal that sought (as the documents reveal) to reflect a perceived Stage 3 situation.  Given that contention, how then to define the ‘reason’ for the purpose of Section 98(1)?  Plainly, the resultant issue is a mixed question of fact and law.  A Tribunal is bound to start by examining the Section 98(2) categories to see whether any such fairly encompass that which appears to be factually the basis for the decision to dismiss;  if no such category of reason is opposite, have the employers established “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”?  In the event we are quite satisfied that the proffered basis for the dismissal could only be categorised as “some other substantial reason” and that the Industrial Tribunal was in error in finding the reason to be that provided for by Section 98(2)(a).  Our reasons are as follows.  Perusal of the Attendance Procedure, and of the documents evidencing its application in the case of this Applicant, readily serves to show that it is about absences and about the problem posed by such in an industry centred upon punctual reliability.  In a given case a dismissal pursuant to the procedure may have something to do with capability (Section 98(2)(a));  in a given case it may have something to do with conduct (Section 98(2)(b));  but in all cases it has to do with absenteeism and the application of a uniform procedure for dealing with, that is with some other, plainly substantial reason (Section 98(1)(b)).  In support of this strong view we point to the unease felt by the Industrial Tribunal about its own choice of reason and its tacit indication that it was manoeuvred to such by the submissions of the advocates then before it rather than by its own inclination.  Paragraph 6 merits citation:

“It was common ground between the parties that the procedure under the agreement is not disciplinary.  It is intended to attempt to improve an employee’s absence record and to encourage him (or her) to take steps to avoid absences so far as possible.  Therefore it was not open to the Tribunal to find that the reason for the dismissal was one of conduct.  The Tribunal found that the reason shown by the respondent for the absence was one of capability on grounds of health under section 98(2)(a) and (3)(a) of the Act.”

	We interpose:  we cannot understand the submissions behind the first sentence and we cannot support the logic behind the balance of the paragraph.  There was more than one possible alternative to ’conduct’ and ‘capability’ would not be such in the event of an Attendance Procedure dismissal unless (it could be argued) the reality behind an absenteeism problem was chronic ill health - which is not the case here.

	Having fixed upon ‘capability’ as the reason, the Industrial Tribunal logically focussed upon factors bearing upon the Applicant’s health when addressing Section 98(4), thereby inevitably giving emphasis to matters that so far from reflecting the Attendance Procedure were potentially inimical to it if over emphasised - for example, giving some weight to the fact that the Applicant had no underlying or chronic condition and was indeed fit for work.  We agree that if the Industrial Tribunal had correctly based its Section 98(4) deliberation upon a sui generis Attendance Procedure dismissal then the underlying and continuing health of the Applicant could not be excluded as a wholly irrelevant factor, but it could not have acquired the prominence appropriate to a ’capability’ dismissal.  Doing our best to construe the difficult passages in paragraphs 16 and 17 of the Extended Reasons and cited above. we think that the Industrial Tribunal are acknowledging the potential unreality of an adjudication based on ‘capability’ and chiding the parties for excluding ‘conduct’.  As is apparent, we are satisfied that neither concept covered what was truly ‘some other substantial reason’.  It is plain that the Industrial Tribunal’s decision was irredeemably flawed by reason of an error of mixed law and fact:  the selection of the ‘reason’.  This appeal must be allowed.

	However before departing from the appeal, it is to be noted that we cannot accede to some of the other submissions made by Mr Carr;  in particular we do not find that the factors taken into account by the Industrial Tribunal were wholly irrelevant to an Attendance Procedure dismissal providing that the perspective stems from such and not from a ‘capability’ dismissal.  In exercising the Stage 3 discretion it is obviously relevant (even if such has no great weight individually or accumulatively) that there was no underlying chronic condition (paragraph 12), that he had worked satisfactorily (if such be the case) through his period of notice (paragraph 13), that the trial periods of absence were no more than the minimum required to trigger Stage 3 (paragraph 14) and that the final absence reflected an injury sustained not whilst in the course of his employment but whilst peripherally advancing the cause of the Respondents, that is when playing football for them (paragraph 15).  We emphasise:  no great weight individually or accumulatively when set against the history and the importance of the Procedure, but hardly irrelevant,  Mr Carr made a particular submission about the work record during the period of notice:  how could this be relevant when the decision to dismiss precedes such?  The answer is that this is an Attendance Procedure dismissal, which Procedure includes an appeal process that was not completed until well after the period of notice.  No such process could hardly fail to note absences during the period of notice, nor for that matter uninterrupted working.  Again the weight is modest unless, ironically, the absences have continued.  In any event no ‘jury’ focussing on the issue and the justice of the situation could do other than inquire as to experience during those five weeks and we are surprised that the advocates before the Industrial Tribunal had not thought of the point themselves.  Finally, Mr Carr was critical of the C.W.U for supporting the Applicant’s claim, suggesting that somehow this evinced reneging on the Agreement.  This is nonsense:  the Applicant’s dismissal was not automatic and a submission that it was unfair casts no doubt on the Agreement itself.  In any event we (and we suspect, his clients) are grateful that Union involvement provided for professional representation for the Applicant.

Disposal

	By way of Paragraph 2 the Industrial Tribunal observed:  “This was not a case where the Tribunal had to decide issues between the evidence of parties and witnesses where there was a conflict between their evidence.  The Tribunal was satisfied that all witnesses were truthful and helpful to the Tribunal.”  In this light we have decided that there is no merit in remitting this matter to the Industrial Tribunal (whether the same or differently constituted) for a re-hearing in the light of the foregoing.  We think that in reliance upon the Industrial Tribunal’s findings of fact and the agreed documentation we are in as good a position to resolve this matter.  On the premise of a reason sui generis, and giving proper weight to the Attendance Procedure and the manner of its application in the particular circumstances of the Applicant’s case we are satisfied that we can and should dismiss this complaint, finding that the Applicant was fairly dismissed.  We are grateful to Mr Carr and Mr Neaman for their respective submissions.