Appeal No. UKEAT/0621/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 April 2008
	                     Judgment handed down on 22 July 2008

Before
HIS HONOUR JUDGE REID QC
MS K BILGAN
MRS D M PALMER

MR S WILLIAMS	APPELLANT

CHESHIRE FIRE AND RESCUE SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR C PRIOR
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Martins Building
Water Street
Liverpool L2 3SX	
For the Respondent	MR S GORTON
(of Counsel)
Instructed by:
Jayne Nixon, solicitor
Fire and Rescue Service Headquarters
Winsford
Chester CW7 2FQ	

SUMMARY

UNFAIR DISMISSAL:  Reasonableness of dismissal

Fireman dismissed following unacceptable level of absences, all supported by medical certificates.  ET held dismissal for “conduct” and not unfair.

HIS HONOUR JUDGE REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at Liverpool on 8‑10 October 2007. The Tribunal held that the Claimant’s claim under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 failed and further held that his claim for “ordinary” unfair dismissal failed.  He appeals against the latter of those decisions.

The facts
2.	The Claimant was employed by the Respondent as a fire fighter from 3 April 1989 until his dismissal on 9 February 2007.  He had been an active trade union representative on health and safety issues since 2001.  Overall the Claimant had a dismal attendance record.  Despite verbal warnings and informal action by the Respondent, the level of absence as at 7 November 2001 remained unacceptable and a written warning was issued.  The written warning advised the Claimant that there would be three monthly reviews of his absences and that if there was no improvement a final written warning would be issued and ultimately if still no improvement then dismissal would follow.

3.	The Respondent’s financial year runs from April to March and by September
2002 the claimant had already had 9 days absence during the year 2002/03. As a result, on 10 September the Claimant was interviewed by a Deputy Chief Fire Officer. The outcome of the interview was that the Claimant was issued with a final written warning dated 19 September 2002.  It included the following passage: 
“Therefore, I will set the maximum level as 10 shifts absence for the financial year 2002/3. Then I expect you to be below the average absence for wholetime shift staff for each of the following three years. If that is not achieved, I will have no hesitation in recommending your dismissal from the Service. Your attendance at work will be monitored on a quarterly basis with a requirement that a future absence of any duration needs to be covered by a doctor’s note….” 

4.	Further absences occurred in March and May 2003 and a detailed review was carried out which recommended that the Claimant be dismissed. There followed a letter from the Chief Fire Officer dated 27 June which advised the Claimant that the Respondent was now contemplating the termination of his contract of employment but offering the Claimant the opportunity to make representations.  A sickness absence interview took place on 22 July 2003.  The outcome of the meeting was a letter dated 6 August 2003 which confirmed that the final written warning issued on 19 September 2002 would remain in force but with its conditions modified, so that the Claimant was required to demonstrate continuous improvement on his attendance record for the financial years 2003/4, 2004/5 and 2005/6. The letter, written by a Mr Turnock, also contained the passage:
“Your absence will be monitored by a senior officer on a quarterly basis, the first being during October 2003, and any occurrence of sickness absence will be followed up to ascertain the nature of the sickness [such as in-Service injury], and whether or not this should be a matter of referral to the Service Occupational Health Adviser.”
 There appears to be no definition in the documentation of the meaning of this expression "in-Service Injury".

5.	At the time of the issuing of the modified final written warning, the Claimant accepted that his attendance record over the years had been wholly unacceptable.  The letter called for continuous improvement and recorded that the warning would be placed on his personal record and “subject to a satisfactory improvement, removed in July 2006.”  Although the Claimant believed the period covered by the warning was excessive he recognised that the alternative was dismissal and was relieved to keep his job.  The warning was therefore accepted in its entirety. There was a dramatic improvement during the year 2003/04 and 2004/05 with only one day's absence in those two years.

6.	In January 2005 the Respondent’s disciplinary rules changed.  The new rule provided: 
“A final written warning must give details and an explanation of the decision. It should warn the employee that failure to improve or modify behaviour may lead to dismissal or to some other sanction, and advise them of their right of appeal. A final written warning should be disregarded for disciplinary purposes after 18 months….” 

7.	There was an incident involving the Claimant at the Skills Development Centre at the Respondent’s Service Headquarters in Winsford on 11 June 2005. The incident was investigated by the Respondent.  The investigation took an inordinate length of time but a disciplinary hearing was finally held on 18 May 2006 as a result of which the Claimant was given a first written warning for period of one month.

8.	The day after the incident on 11 June 2005 the Claimant embarked upon a period of sickness absence lasting for a total of 23 days.  The doctor's notes refer to "stress related problem" and "work related stress" respectively.  A report from Dr Denman of the Respondent’s Occupational Health Department commented that, "as far as I can tell his illness is due entirely to problems at work".  There was a memorandum dated 29 July 2005 from the Claimant's manager, Mr Keith Nicholson, following his quarterly sickness report stating "the period of sickness was an on duty injury work related stress", though there did not appear to be any medical report or certificate to that same effect .  Thereafter the Claimant was absent from work from 22 December -26 December 2005, 6 January - 10 January 2006 and 26 March – 1 April 2006, a total of 9 days.

9.	An investigation was then undertaken and the investigation report resulted in a disciplinary hearing being convened for 12 October 2006 to consider allegations that the Claimant had failed to comply with the conditions of the final written warning issued on 6 August 2003.  An issue arose as to whether or not the 23 day stress-related absence beginning on 12 June 2005 fell within the exception Mr Turnock had in mind when writing the modified final written warning on 6 August 2003, so the hearing was adjourned.  Mr Turnock was interviewed and expressed the view that stress was an illness and not an injury and that the post 11 June 2005 absence did not come within the exception he had in mind when issuing the warning on 6 August 2003.  There is no finding that DCO Turnock told the Claimant that stress would be considered an illness and not an injury at the time of the warning or afterwards.

10.	After the Turnock interview the disciplinary hearing was reconvened for 16 November 2006. The hearing concluded that the 23 days absence in June/July 2005 could not be disregarded, that the Claimant had breached the terms of his modified final written warning and that he should be dismissed with 12 weeks contractual notice.  The Claimant exercised his right of appeal by letter dated 22 November 2006.  The appeal hearing also concluded that the 12 June onwards absence could not be discounted and re-affirmed the decision to dismiss by letter on 21 December 2006.

The Tribunal’s decision
11.	The Tribunal identified as issues it had to determine “the reason for dismissal, [and] whether it was a reason falling within section 98 of the Employment Rights Act 1996”.  The Tribunal was “entirely satisfied that the reason for dismissal related solely to the Claimant's absence record and had nothing whatsoever to do with the Claimant taking part in trade union activities on 11 June 2005.”  The Tribunal was satisfied that the reason for the Claimant's dismissal related to conduct, a potentially fair reason for dismissal within Section 98(4) of the Employment Rights Act 1996.  It noted that the job of fire fighting is a job that demands high standards not least in respect of attendance.  There had been a dramatic improvement in 2003/04 and 2004/05, which was not sustained in 2005/06 when the Claimant's periods of absence again became unacceptable.  The Respondent was, in the Tribunal’s view, perfectly entitled to take further disciplinary action and in the Tribunal’s unanimous view dismissal was within the band of reasonable responses available to a reasonable employer. 

12.	In reaching this conclusion the Tribunal regarded the question whether the Respondent was entitled to take into account in the period of absence for 2005/06 the 23 day period of absence commencing on 12 June 2005 as being of considerable importance.  It took the view that whilst the wording of the Respondent’s letter of 6 August 2005 could have been more explicit, but the only logical interpretation that could be placed upon the words "in-Service injury" was that the words were intended to recognise the precarious nature of the Claimant's occupation and were intended to exclude from any consideration of absence for disciplinary purposes periods of absence occasioned as a result of an injury sustained in the course of carrying out his duties.  Its view was that the Respondent was perfectly entitled to treat the 2005-06 absence record on the basis of 32 days absence, as opposed to 9 days absence.  This level of absenteeism was totally unacceptable and was clearly in breach of the warnings issued in 2002/03. 

13.	After dealing with some procedural points immaterial to this appeal the Tribunal expressed the view that the Respondent was entitled to rely upon the time limit for improvement specified in the 6 August 2003 letter and was not under an obligation to replace or substitute that time limit with the period of 18 months once the disciplinary terms had been altered and held that the unfair dismissal claim failed.

The grounds of appeal
14.	The Claimant raised a number of points on its appeal.  They could be put under five heads.

a.	The Employment Tribunal had incorrectly identified the reason for dismissal. As a result, it was submitted, the Employment Tribunal erred in principle when looking at the reasonableness of dismissal.  The Respondent's ET3 identified the reason as having been on the ground of capability (s98(2)(a) of the 1996 Act) or some other substantial reason (s98(l)(b)) and the Respondent's written closing submissions at paragraph 15 put the reason for dismissal as “capability or some other substantial reason.”. However, in paragraph 7.2. 1 of the judgment the Tribunal identified the grounds of dismissal as being “conduct.”  This, it was said, meant that the Tribunal had approached the case on a wrong basis.
b.	The Employment Tribunal’s interpretation of "in-service injury" as not encompassing "on-duty work-related stress" so that the Claimant's period of absence for on-duty work-related stress (a) did not count as "in-service injury" but (b) did count as an absence against him for the purpose of the final written warning..
c.	Related to this was the further submission that the Tribunal erred in holding the Respondent was entitled to “reject of all the medical evidence”, both from the Claimant's GP and from the Respondent's occupational health doctor, that the Claimant had an in-service injury i.e. on-duty work-related stress when the Respondent had not told the Claimant in advance about its restrictive definition of applying only to physical injury.
d.	The Tribunal failed to take account of the change in the rules during the currency of the Claimant's 3 year final written warning.  Under the new rules a final written warning "should be disregarded for disciplinary purposes after eighteen months". 
e.	There was undue delay in commencing disciplinary proceedings.  The Claimant was effectively penalised twice for the incident of 11 June 2008.  Taken all together the Tribunal should not have taken the view that the penalty of dismissal was within the band of reasonable responses available to the Respondent.

Discussion 
15.	On his first point the Claimant referred to Wilson v Post Office [2000] IRLR 834 in which the Court of Appeal considered a case about poor attendance.  The issue in the appeal was the reason for the dismissal.  The employment tribunal interpreted the reason given for dismissal "incapability by reason of unsatisfactory attendance record" as "capability" within the Employment Rights Act 1996.  This, the Court of Appeal held, was an error.  The employer dismissed Mr Wilson because of his attendance record not his capability (ie because of his health).  It followed, the Court of Appeal held, that the Employment Tribunal had been in error because the Tribunal concentrated only on the state of the Claimant’s health and, having done so, found the dismissal was unfair because the medical evidence disclosed no underlying or chronic condition and was fit to work.  In that case, the Claimant submitted, the employer had by its ET3 identified the reason for dismissal as “capability” and the Tribunal had limited its consideration to that point.  In this case the employer had identified “capability” and “some other substantial reason” as the grounds for dismissal and the Tribunal had been in error in finding a reason for dismissal not advanced by the employer.  It had therefore been in error because it had not considered whether the sanction imposed fell within the band of reasonable responses against the appropriate legal background.  

16.	The Respondent submitted that the Tribunal had determined the reason for dismissal as failure to adhere to attendance procedures and warnings and had been entitled as a matter of law to hold that this amounted to a dismissal for “conduct”.  The case had been argued before the Tribunal on the broad basis of whether the Claimant was fairly treated and the classification of the reason for the dismissal was not an essential part of the argument.  The Tribunal had fully analysed the fairness and merits of the case and was entitled to say the case was one of dismissal for conduct.

17.	In our view Wilson does not support the proposition put forward by the Claimant.  As Buxton LJ observed at para 15 
“In looking at the proper interpretation of an approach to s.98, it is important to bear in mind what was said in this court by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] IRLR 213: 'A reason for the dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.'” 
Buxton LJ went on at para 20:

: “…The reason given by the employer was the attendance record. True it is, as [counsel for the Claimant] urges, that the attendance record had been caused by Mr Wilson's ill health, but the latter was not the reason why he was dismissed. He was dismissed because he failed to comply with the requirements of the agreement.
21. That characterisation of the reasons for dismissal was not merely a formal issue, because the tribunal went on to say that it could only consider the question of fairness in the context of the reason found for the dismissal. That meant that it felt itself obliged to assume that Mr Wilson had been dismissed on grounds of health and did not direct itself to the actual reason why Mr Wilson had been dismissed, that is to say that he did not fulfil the requirements of the attendance agreement. In the light of what was said in Abernethy [1974] IRLR 213, it is in my judgment a question of legal analysis to determine under which part of s.98 the reason in fact given by the employer falls. Here the tribunal erred in assuming simply on the basis of one sentence in the notice of appearance, that this was a case of capability. Having determined that, they then had to find a ground of capability that fell under s.98(3), and health was the only contender. But those two steps meant this case was approached by the tribunal on a basis that was not the basis upon which the employer had dismissed Mr Wilson and was not, as we have seen from the exchanges before the tribunal hearing, the basis upon which either side came to court.”

18.	In our judgment the position in this case was that the Tribunal had to, and did, determine the reason shown by the employer for dismissal (his attendance record) and then had to determine whether that reason fell within those set out in s.98.  This it did, determining that the reason fell within s.98(2)(b), conduct.  This legal classification of the reason shown for the dismissal was a matter of legal analysis for the Tribunal.  In our view it was a conclusion to which the Tribunal was entitled to come.  The fact that the Respondent submitted that the dismissal was for capability (health) or other substantial reason did not oblige the Tribunal to accept that analysis.  The Tribunal then went on and considered the totality of the circumstances in deciding whether the dismissal was within the reasonable band of responses available to the Respondent.  This was markedly different to the situation in Wilson where the Tribunal had looked at the issue of reasonableness constrained by the fact it was only concerned with the reasonableness of the employer’s response, given the evidence as to the employee’s health.  The Tribunal’s decision cannot properly be faulted on this basis.

19.	
The Claimant’s second ground of appeal related to the meaning of “in-Service injury”. The precise words in the final warning letter of 6 August 2003 are: 
“Your absence will be monitored by a senior officer on a quarterly basis, the first being during October 2003, and any occurrence of sickness absence will be followed up to ascertain the nature of the sickness [such as in–Service injury], and whether or not this should be a matter of referral to the Service Occupational Health Adviser.” 

The writer, Mr Turnock, did not intend to include a stress-related illness within the definition but the Claimant was not told this. It was said that the Tribunal failed to take account of the fact of the Claimant’s lack of awareness and that in any event the employer should have either accepted the medical view that the absence was due to an in-Service injury or commissioned a further medical report.

20.	The Respondent submitted that the Tribunal made a finding as to the meaning of “in-Service injury” and that the Respondent had been entitled to take the view that the stress–related illness was not an “in-Service injury”.

21.	In our judgment the Tribunal cannot be faulted for finding that the object of the words was to “exclude from consideration of absence for disciplinary purposes periods of absence occasioned as a result of an injury sustained in the course of carrying out his duties.” As counsel for the Respondent accepted, this would include mental as well as physical injury (for example post-traumatic stress disorder) but was not apt to include mere “stress-related problem” or “work related stress” (to use the diagnosis given by the Claimant’s GP on his two medical certificates). Having reached this conclusion on the construction of the words in our view there was no need for the Tribunal to take into account that there had been no explanation as to the meaning of the words to the Claimant at the time of the letter.  There was, in any event, no suggestion that the Claimant took any action or abstained from any action on the basis of any mistaken belief as to the meaning of the words. 

22.	The third ground was that the Tribunal failed to hold that in any event the employer should have either accepted the medical view that the absence was due to an in-Service injury or commissioned a further medical report.  The Respondent submitted there was no reason why it should have sought a further medical advice.  It is clear that this point played only a very minor part before the Tribunal.

23.	There was no medical evidence to suggest that the stress related to any on-duty injury. The GPs two certificates did not suggest this and the Respondent’s doctor’s occupational health report stated:
“… he has been off work since 12 June following an incident at work the day before, and as far as I can tell his illness is due entirely to problems at work. …. However, the question of any potential disciplinary process needs to be resolved before his condition is likely to improve, and it should therefore proceed as quickly as possible.” 

The only suggestion that the stress was a result of an on-duty injury came in an e-mail to the Occupational Health Unit from a Human Resources Support Adviser and in the Claimant’s reviewing officer’s note: “also the period of sickness was an on duty injury work related stress.”  It is notable that the Claimant’s contentions at the disciplinary hearing and on appeal (as recorded in the decision letters) related to the absences being due to work-related stress, and not to the stress relating to any on-duty injury.  In our view the Respondent was entitled to reach the conclusion it did in relation to the medical evidence and there was no obligation to seek further medical advice and it cannot be said that the Tribunal was wrong not to have found that the Respondent should have sought further medical advice. 

24.	The fourth point related to the change in the disciplinary rules.  It was submitted that following the change in the rules the condition in the letter of 6 August 2003 should have been disregarded as being more than 18 months old.  The Tribunal expressed its view at para 7.3.3 as being that the Respondent “was not under an obligation to replace or substitute that time limit [ie the 3 year limit] with the period of 18 months provided for [in rule 11 of the new Disciplinary Procedure].”  The Respondent submitted that the change in regime did not affect the efficacy of the final warning.  It was argued that change in the rules applied only to final warnings imposed after the date when the new rules came into force.  Our attention was drawn to the fact that the Claimant’s original submission to the disciplinary hearing had accepted that the “long duration of the final warning [was] realistic given the very poor level of attendance over an extended period.”  The final written warning remained in place and his failure to comply with its conditions was a good reason for dismissal.

25.	We are unable to accept the Respondent’s submission in its entirety.  In our judgment in conducting its disciplinary procedures the Respondent was obliged to follow the code current at the time of the hearings.  However we do accept that in disregarding the final written warning for disciplinary purposes after 18 months the Tribunal was not required to treat that final warning as non-existent.  The new rule did not provide for a final warning to be deleted from his personal record file after 18 months.  The purpose of the rule was to provide that a final written warning should not be brought into account after 18 months in determining any disciplinary penalty after 18 months.  Thus if an employee was found to have committed some different disciplinary offence during the currency of a final written warning more than 18 months old, that final written warning should not be factored into the penalty for the new offence.  The rule did not provide that the employee should be free to disregard behavioural or performance targets set in the final written warning with impunity. 

26.	The allegation made against the Claimant was that he “had failed to continuously improve [his] attendance at work as required in the conditions of the final warning issued by DCO Turnock in his letter … of 6 August 2003”. The essence of the charge was the Claimant’s failure to comply with the requirement in the final written warning.  In our view the Tribunal was correct to say that there was no obligation to replace or substitute the time limit with the period of 18 months.

27.	The final grounds of appeal related to the delay in the disciplinary proceedings, the alleged double penalty arising from the incidents of 11 June 2005 and the alleged unreasonableness of the penalty.  The Claimant submitted that although he was off work following the incident on the 11 June 2005 there was no process, whether disciplinary or otherwise, about the absence until the start of the disciplinary procedure on the 24 April 2006.  The Respondent did not deal with the absence as a breach of the final written warning in the intervening quarterly reviews, while his attendance had otherwise improved.  It was said that the reviewing officer could have started the process after the period of absence of 23 days in June 2005 (which put the Claimant over the 10 shift absences). Instead he referred the matter to occupational health officer, and nothing was then done about the absence or at any subsequent review until April 2006.  If he had breached the terms of his final written warning by the 23 day absence from the 12 June 2005, then for no reason the disciplinary procedure did not take place at or around that time.  In reality the absence stemmed from the stress arising from the incident of 11 June for which he received a one month first written warning.  All this, it was submitted, impacted on the Employment Tribunal's finding that the sanction was fair.

28.	The Respondent submitted that these grounds of appeal were in substance no more than an attempt to re-run issues of fact which had been unsuccessfully ventilated before the Employment Tribunal or an attempt to raise a perversity argument without actually saying so.

29.	In our view the Respondent’s submission is correct.  There were two entirely separate issues: the disciplinary incident of 11 June and the failure to maintain an acceptable level of attendance.  The disciplinary proceedings in relation to the failure to attend arose not just from the absence following immediately on the incident of 11 June but related also to his three subsequent periods of absence: 22 December -26 December 2005, 6 January - 10 January 2006 and 26 March - 1 April 2006.  The Tribunal was perfectly entitled to take the view that it did of the facts and of the range of remedies available to the employer.

Conclusion
30.	It follows that none of the grounds of appeal succeed and the appeal must be dismissed.