Appeal No. EATS/0040/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 29 October 2003

Before
THE HONOURABLE LORD JOHNSTON
MR P M HUNTER

ROYAL MAIL	APPELLANTS
(a trading name of Royal Mail Group plc)

EDWARD JOHN SPENCE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	Mr J Cran, Solicitor
Of-
Messrs McGrigor Donald
Solicitors
Princes Exchange
1 Earl Grey Street
EDINBURGH   EH3 9BN

For the Respondents

	

Mr G Forbes, Solicitor
Of-
Messrs A C White
Solicitors
23 Wellington Square
AYR   KA7 1HG

LORD JOHNSTON:

1.	This is an appeal at the instance of the employer in respect of a finding by the Employment Tribunal sitting in Glasgow that the applicant had been unfairly dismissed.  Certain monetary orders were made which are not the subject of this appeal.

2.	The background to the matter is that the employers, in agreement with the trade union, operate an attendance procedure which is in the following terms:-

“In outline, the procedure provides for a three stage warning procedure. The warning system is triggered, by failure to achieve the minimum national attendance standards provided at point 2 on R3/6. These provide that a stage 1 warning is potentially triggered by four absences or fourteen days absence in a twelve month period.  Thereafter a stage 2 warning is triggered by two absences or ten days absence in any six month period during the next twelve months following upon the issue of a stage 1 warning. A stage 3 warning, is triggered by two absences, or ten days in any six months, during the next twelve month period, following upon the issue of a stage 2 warning.

Before a stage 1, 2 or 3 warning is issued, the employee will be interviewed by the employer and be asked to give an explanation of his attendance and asked if there are any mitigating factors. The employee has a right to be accompanied, at each meeting.  The first, second and third stage warning should each be issued in writing. (P5.1 R3/3).

Point 5.3 of the procedure (R3/3) provides that, if after receiving a stage 2 warning there is insufficient improvement in the employee’s attendance and the manager dealing considers that dismissal may be appropriate, the employee should be advised that Royal Mail is considering dismissal and invites him to put forward reasons why he should not be dismissed. An interview will take place, and the employee has the right to be accompanied by a representative.  

If the Manager takes the decision to dismiss then the employee will be advised accordingly however if the Manager decides dismissal is not justified then the employee will return to stage 2 of the procedure and the attendance standards appropriate to that stage will apply.  

An employee has the right to appeal against dismissal within three working days of receipt of the written notification of the decision to dismiss.”

3.	It was not disputed that in this case, for various reasons, the employee respondent had passed both stage 1 and stage 2 of the procedure.  He then went off work for a further protracted period consequent upon having been assaulted in the street.  This triggered stage 3, and, consequently, an interview in that respect.  Subsequent to that interview, the applicant was dismissed.

4.	Against that background the decision of the Tribunal is as follows:-

“The respondents submitted that the applicant was dismissed for some other substantial reason, which is a potentially fair reason falling within Section 98(1)(b) of the Act.  That reason was failure to comply with the attendance procedure.  The attendance procedure is an agreement which establishes a procedure against which absenteeism can be evaluated.  The procedure is designed to assist the respondents in providing a service to its customers by maintaining staffing levels.  It is an agreement which has been reached after consultation with the CWU.  The terms of the agreement are clear, and are well known to the respondents’ staff, including the applicant.  The trigger for a stage 1, 2 and 3 warning are clearly set out within the terms of the agreement and were known to the applicant.  The agreement specifically provides, as was known to the applicant that the issue of a stage 3 warning, could result in dismissal.  

The attendance procedure, had been put in place in order to protect the respondents’ business interests.  We were satisfied (and indeed there was no argument to the contrary by the applicant) that he had been dismissed because of his failure to attain the attendance performance required by the agreed procedure.  We were also satisfied, given the respondents business requirements, the fact that procedure had been agreed with the Union, and the fact that the terms of the agreement were so clear, that failure to comply with the attendance agreement did constitute some other substantial reason of a kind such as to justify dismissal within Section 98(1)(b) of the Act, and that accordingly the applicant’s dismissal was for a potentially fair reason.

The Tribunal, being satisfied that the respondents had fulfilled the requirements of Section 98(1) of the Act by establishing to the satisfaction of the Tribunal that the reason for the dismissal, fell within Section 98(1) of the Act, it was then necessary for the Tribunal to decide whether the applicant’s dismissal was fair or unfair in terms of Section 98(4) of the Act.  

We firstly began by considering whether or not the attendance procedure was in itself fair.  The attendance procedure was a means of evaluating absenteeism and a means of assisting the provision of a service to the respondents’ customers.  In terms of the procedure are clear and unequivocal, and were well know and understood by staff, including the applicant. The procedure had been agreed with the union acting on behalf of the workforce and in these circumstances, we could not conclude there was anything unfair in the procedure itself. 

We then went on to consider whether or not there was any unfairness in the way in which the procedure had been applied, which involved asking the question whether no reasonable employer would have acted otherwise than the respondents did in these circumstances.  

There was no doubt that the applicant had failed to comply with the terms and procedures. Nor was there any argument that the respondents had followed the procedure correctly, in dealing with the stage 1 and stage 2 warnings.  The applicant had been represented on each occasion at the stage 1 and stage 2 interviews and had been given the opportunity to state his case. He had also been given full access to all the information which the respondents had in advance of each hearing.  Similarly, at the stage 3 procedure, and at the Appeal hearing the applicant was represented, and was given the opportunity to state his case.  

There were two procedural matters arising from the stage 3 hearing, and the appeal hearing, which we considered.

The first was whether the fact that the stage 3 hearing took place around two months after the stage 3 warning was triggered rendered the decision to dismiss unfair.  

The applicant claimed at the stage 3 hearing that he had been lead to believe because of the time delay that no action would be taken against him. He did not however provide information at the stage 3 hearing to substantiate this claim.  We accepted Mr O’Donnell’s evidence that delays of this kind were not uncommon and no evidence was lead which allowed us to conclude that the fact the stage 3 hearing took place two months after the stage 3 warning was triggered, of itself, rendered the dismissal unfair.  
We similarly considered whether or not the fact the applicant was not given a copy of Mr O’Donnell’s deliberations (R17/1) in advance of the Appeal hearing rendered the dismissal unfair. 

We noted that Mrs Burnett had offered to allow the applicant to go through all the paper work which she had in advance of the appeal but this offer was declined.  There was nothing in evidence to suggest that the lack of R17/1 would in any way have prejudiced the applicant’s position.  He was fully aware of the procedure and the reasons for his dismissal. He was given a full opportunity to address the appeal hearing on whatever matters he considered relevant. The appeal hearing constituted a re-hearing of his case and we could not conclude that the fact that Mr O’Donnell’s deliberations had not been sent to the applicant in advance of the appeal hearing in these circumstances, rendered the dismissal unfair.

The question which we then considered was whether the decision to dismiss the applicant in the circumstances fell within the band of reasonable responses open to a reasonable employer in the circumstances.  It was in relation to this question that the Tribunal failed to agree unanimously, and reached a majority decision.  The majority (with the Chairman dissenting) considered the dismissal was unfair in that the decision to dismiss the applicant was too harsh and fell outwith the band of reasonable responses open to a reasonable employer. The majority considered that a reasonable employer would have taken account of the fact that the applicant had an unblemished attendance record from 14 April 2001 to 22 October 2001, and from his return to work until his dismissal and that insufficient weight had been attached to this by Mr O’Donnell, when taking his decision to dismiss and that no weight had been attached to this fact at all by Mrs Burnett.  The majority also considered that insufficient weight was attached to the fact that the applicant’s absence which triggered the stage 3 procedure, arose in consequence of an unprovoked attack and a reasonable employer would have taken this factor into account in taking a decision to dismiss.  Mr O`Donnell had placed too much emphasis on the fact that the applicant had not sought to press charges against his assailants, which was irrelevant.

The procedures which an employee was to follow in order to return to rehabilitation work were unclear and no blame could be attached to the applicant for failing to return to work in advance of the expiry of his medical certificate. Further, too much emphasis had been put by both Mr O’Donnell and Mrs Burnett on the applicant’s failure to return on work in light duties at an earlier stage, when the procedure as to how to go about this was very unclear.  In the circumstances, the decision to dismiss was simply too harsh, and fell outwith the band of reasonable responses which a reasonable employer might adopt, and that the respondents had failed to satisfy the tests of fairness laid down in Section 98(4) of the Act, in dismissing the applicant.

The minority member began by considering the reason for dismissal ie that the applicant failed to achieve the agreed attendance requirement. While it was unfortunate, that the applicant’s stage 3 warning was triggered by his absence, which was caused by an unprovoked assault, the notes of the meetings make it clear that it applying the procedure, the respondents accept that the reason for the absence was genuine and that the applicant was genuinely ill.  The agreed procedure continues to apply in circumstances where the employee is ill through no fault or blame of his own, and therefore it was not unreasonable for the respondents to take a decision to dismiss the applicant even in circumstances where he was absent through no fault of his own.  They were entitled to attach very significant weight to the simple fact that the applicant had failed to meet the attendance requirements and the fact that he had an unblemished attendance record from April 20002 until October 2002 and from his return to work after the assault, until the date of his dismissal was not of itself something which would have reasonably required them to exercise their discretion not to dismiss the applicant.  Further, while the provisions in relation to return to work under the rehabilitation programme were unclear, from the respondents’ investigations, it was clear that Jenny Devlin had not suggested to the applicant that she would arrange for him to return to work, and that the applicant had taken no steps to contact his Line Manager.  Given that the reason for dismissal was the failure to comply with the agreed procedure, while there can be no doubt that the decision to dismiss was harsh in the circumstances, taking account of the applicant’s length of service, and the fact that his attendance record from the date of his stage 2 warning until his stage 3 absence, was unblemished, but it could not be said that no reasonable employer would have acted otherwise than the respondents did in these circumstances.”

5.	Mr Cran, appearing for the appellants, submitted that the majority of the Tribunal had misdirected themselves inasmuch they had treated the case as one of conduct against the test of reasonable response to such conduct by the employer, rather than approaching it against the background of a mechanised process dealing with lack of attendance which was designed to maintain the complement of the workforce.  It followed that the reasons why an employee might not be at work were nothing to the point.  The issue was properly addressed by the minority view of the Chairman which this Tribunal should adopt.

6.	Mr Forbes, for the respondent, simply submitted that it was a matter for the industrial jury, who had determined the issue as one of unreasonable response on the part of the employer, when what had happened to the respondent was taken into account.  While there might be room for two views, this was not something which should reflect in the decision of this Tribunal.  The only test was whether or not the Tribunal below properly instructed to reach a conclusion it was entitled to achieve and this, he submitted, it had done.

7.	While we recognise that it is the role of this Tribunal not to interfere with factual decisions taken by the Employment Tribunal, particularly in relation to the issue of reasonableness with regard to unfair dismissal, we can interfere, however, if they have applied the wrong test and in this case we consider they have.  The proper approach to the matter is to base consideration of the issue on the agreed procedures which were not categorised as unfair and were followed to the letter.  That being so, we accept the proposition of Mr Cran, that within the terms of the agreement with the union, there was a presumption in favour of dismissal, if the stage 3 part of the process had been passed and there was no issue of unfairness in the way it had been handled.  While such presumption could obviously be rebutted in extreme cases, we do not consider this to be one.  It must be borne in mind that the entire motivation behind this scheme is for the employer to maintain a level of manpower to enable it to maintain its public service and regular absentees have to expect, at times, treatment which might appear to be harsh.

8.	In these circumstances we adopt the reasoning of the minority Chairman.  Furthermore we consider the decision she reached was the only one open to the Tribunal against the practical background which we have set out.  That being so, we consider we are entitled to substitute her view for that of the majority.

9.	In these circumstances this appeal will be allowed and the decision of the Tribunal quashed.