Employment Judge M StreetMr Griffiths (instructed by counsel) for claimantMr Howson (instructed by solicitor) for respondentDate 31 October 2017
JUDGMENT
The claimant was unfairly dismissed. The respondent is ordered to pay the claimant compensation agreed at £6189.94. JUDGMENT having been sent to the parties on 7 November 2017 and reasons having been requested by the respondent on 7 November 2017 in accordance with Rule 30(5) of the Rules of Procedure 2004
REASONS
[1]Evidence 1.1. The tribunal heard from Mr George, from John Wallace, Managing Director, Sam Mathisen, Warehouse Supervisor and line manager and from Kamil Grzechowiak. 1.2. The Tribunal read the documents in the bundle referred to. Numbers in brackets below are to the page numbers in the bundle, numbers against “ws” are references to witness statements.[2]Issues 2.1. Mr George claims that he was unfairly dismissed. The issues were agreed as follows. 2.2. What was the reason for the dismissal? The respondent asserts that it was a reason related to capacity which is a potentially fair reason under section 98(2), Employment Rights Act 1996. (“the 1996 Act”). 2.3. Did the respondent hold that belief in the claimant’s lack of capacity honestly and on reasonable grounds based on reasonable enquiry? The burden of proof is neutral here but it helps to know the claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows: 2.3.1. The failure to take into account favourable advice from Occupational Health (“OH”). 2.3.2. The failure to obtain a medical report from the claimant’s general practitioner (“GP”).. 2.4. The issue here is not whether the tribunal thinks that he could or could not do the job. The question is what the employer thought and whether it was a reasonably held belief. 2.5. Was the decision to dismiss a fair sanction, that is, was it within the reasonable range of responses for a reasonable employer? That is an objective approach – the tribunal cannot substitute its own view. 2.6. If the procedure is found to be unfair, does the respondent prove that if it had adopted a fair procedure the claimant would have been fairly dismissed in any event, to what extent and when? 2.7. Remedy, to include compensation[3]Findings of Fact. 3.1. The respondent is a supplier of stage lighting and sound equipment 3.2. The company don’t have a capacity policy or absence policy. They have a disciplinary policy which expressly does not cover cases involving genuine sickness absence (36). 3.3. Mr George’s employment as a Warehouse Team Technician began on 7/03/13. 3.4. His responsibility was unloading and loading, maintaining hire equipment and picking and packing orders (79 ). 3.5. The job involves moving equipment, including double stacking of flight cases which could weight up to 100 kg. There is no marked weight on the boxes. Two people were required for the heavier weights. Staff were expected to lift weights up to 25 kg for a single man, with team lifting of weights up to 45 kg. The job also involved maintenance and repair of equipment and ensuring it was properly stowed and its dispatch recorded (71) 3.6. The warehouse team was divided into teams, with usually 4 men to a team. Mr George worked in lanterns, and aside from lighting, he did fixing and repairs. Other teams dealt with cables and distribution boxes, speakers and video screens and lighting. There were other teams, Hire in, Hire out and Rigging. 3.7. Agency workers were frequently used at busy times. 3.8. Agency workers were employed substantially over the latter part of 2016. For example, there were 10 in the week of 1/07/16, including Mr Duell for the full week, (100), 9 in the week of 8/07, and 15/07, 12 in the week of 29/07, 7 in the week of 28/10, 6 in the week of 4/11, 2 in weeks 11/11 and 18/11 and 7 in the week of 2/12, including again Mr Duell (117). 3.9. In April 2016, Mr George was absent with lower back pain and spasms. 3.10. He returned in May but the GP recommended no heavy lifting – that is, no lifting above 5kg - for at least four weeks (50). The recommendation was that he was then eased back into full duties. 3.11. He was given light duties. The adjustments made at that point were in terms of reduced lifting, no picking orders and packing. 3.12. He took time off in June, still having trouble, but was encouraged to take it as annual leave. (83, para 6 Cws, oral evidence) 3.13. From 23/06/16 to 1/07/16, he was again signed off work, the GP certificate referring to sciatica. 3.14. At the return to work meeting on 5/07/16, he was warned that formal action would follow if his absence record did not improve. (Cws 7). 3.15. From then on, the claimant was on light duties (Cws8) 3.16. On 14/07/16, he was given an informal warning about the effect of further absences – clearly taking the approach that his behaviour represented misconduct (56). 3.17. On 16/08/16, Mr George had an MRI scan. 3.18. From 19/10/15 to 21/09/16, he had a total of 24.5 days off on sick leave. Absences related to his back pain are recorded being four episodes over 2 – 3 months, namely 23/06, 6.5 days, 8/06, 5 days, 2/06, 1 day, 20/05 1 day, 13.5 days (96). 3.19. On 2/09/16, he collapsed with abdominal and chest pains. An ambulance was called (ws 13). It was a temporary problem and did not lead to further time off. 3.20. On 21/09/16, he was off sick for three days with a urinary tract infection (57). 3.21. This was the last sickness absence before dismissal. There was an unrecorded return to work meeting with Ms Cheeseman when he was told that his absences had got to a level where it would require disciplinary procedures. 3.22. He had improved from when he first came back to work with back trouble. He had gone from very light duties to taking on more of his normal role. Mr Mathison was aware of the improvement. He still had a hand with heavier lifting. He was not aware of any particular individual being assigned to work with him to support him in carrying out his duties. Agency workers were common, he was used to finding himself working with them for substantial periods. 3.23. On 11/10/16, there was a formal disciplinary hearing regarding sickness absence (62). It was dealt with as misconduct. Ms Cheeseman confirmed that they did not doubt that he was genuinely ill when off sick. The issue was the level of absences. 3.24. Mr George reported at that meeting that he had a herniated disc, that he was on fairly light duties, was fine on Mondays and Tuesdays, but that it got progressively worse during the week. The disc was healing nicely though further treatment with cortisone was a possibility. He consented to a medical report being obtained from his GP. 3.25. He was reassured that the company respected his work and wanted to make him as comfortable as they could. He was put on statutory sick pay for all absences in excess of 10 days. 3.26. No GP report was obtained. 3.27. On 4/11/16, there was a telephone consultation with OH. The report was that there was a, “Good likelihood of being able to provide regular and effective service outside of any possible exacerbations” “This could have intermittent flare-ups/ exacerbation periods as is the nature of the condition but for the time being he continues to be fit for work with some reasonable adjustments if the company can accommodate them.” 3.28. The report continued “I would advise in relation to any future manual handling activities that these are risk assessed to ensure he does not lift weights heavier than 15 kg to ensure no further exacerbation occurs. …I could not identify any further medical treatment options or management support which would increase the likelihood of Mr George providing a better level of attendance.” (66) 3.29. It does not recommend a GP report and it does not suggest that the limitation on lifting is time limited. 3.30. The report was solely based on telephone interview. Medical records were not consulted. 3.31. On 9/11/16, a Stage 1 written misconduct warning for sickness absence was issued with a warning of “unacceptable levels of absence, namely 24.5 days in the past 12 months which are unacceptable for our company”. The warning ran for six months (68). 3.32. Also on 9/11/16, Mr George was invited to a medical capability hearing (69. He was issued with the OH report. The invitation said that, “If there is little likelihood that you are able to return to your Team Technician role in its full capacity, within a reasonable timescale, and with the restrictions of lifting no more than 15 kg is no longer in place, or alternative employment is not available, then the outcome may be notice of the termination of your employment on the grounds of ill health.” 3.33. On 17/11/16, the capability hearing took place, chaired by Mr Henson. 3.34. At that hearing, Mr George reported a improvement in his back condition (70): “Paracetamol only, quite a dramatic improvement, lifting not a major issue in the last couple of weeks, but a hand needed for weights over 15 kg. Standing can be a problem, best if I can move about.” “How long do you feel it will be before you are able to fully return to your duties?…..Someone has to cover your role so we have an agency employee.” “I don’t know. In view of my age, I’m going to now always have back issues. It’s never going to go away, it’s just knowing my limits. The last few weeks I’ve manage to work around this.” 3.35. The request that a GP report be obtained was refused: “We are not going to gain anything”. 3.36. On 24/11/16, Mr George was dismissed (73). “Further to your prolonged period of absence over the last 12 months and our meeting on 17/11/16…” “We discussed whether there were any reasonable adjustments that could be made to your current post to facilitate a return to work but none were found.” 3.37. The basis for the decision is set out that there was no possibility of Mr George returning to his substantive role for foreseeable future. It is recorded that he agreed with that. “We discussed whether there were any reasonable adjustments that could be made to your current post to facilitate a return to work but none were found. We also considered the possibility of suitable alternative employment, but unfortunately there were no suitable vacancies”. 3.38. The dismissal was immediate, with pay in lieu of notice. 3.39. On 30/11/16, Mr George appealed, on the grounds that the procedure had been unfair, that the decision to dismiss was unreasonable and premature. He pointed out there had been no absence since 23/09/16 (75). His back was improving and the respondent had not obtained proper evidence on the prognosis. 3.40. On 13/12/16, there was an appeal hearing, conducted by Kuldeep Chahal, from HR Face2Face. It lasted 50 minutes. The appeal was by way of review of the original decision. 3.41. Mr Chahal did not at that stage have a copy of the OH report, had not read any documents, even the minutes of the dismissal hearing, and did not have a representative of the company present (78). 3.42. Mr George’s evidence to the appeal officer was that within the last month he had only needed help with things that would be two man lifting jobs in any case (80). He had been getting back to the stage where he could do the tasks at issue. In fact, “I had done those tasks on particularly busy occasions and I’d been asked to do it and I’d done overtime the week before.” 3.43. Mr George says he was doing 90% of his role by then and felt ready to start doing it fully (85). He reported on the dramatic improvement the physiotherapist had seen which had led to him being discharged from further treatment (81). 3.44. After that hearing, the appeals officer interviewed Ms Cheeseman of HR and reviewed the documents, that is, those relating to the disciplinary hearing and the medical capability hearing. 3.45. Christine Cheeseman provided a summary of events and set out the absences, with the reasons for them. Her summary addresses absences. Adjustments are only mentioned in the context of the level of adjustments being unreasonable: “Following the medical capability hearing and with advice from Peninsula we decided that the reasonable adjustments that have been in place for the past 4 – 6 months can no longer be sustained, no other adjustments can be made in his current role to facilitate a return to work and there were no other suitable positions available, we therefore decided to terminate his employment.” (87) 3.46. Nothing is said as to the nature of the adjustments in place, or as to what might be required in future. 3.47. The appeals officer concluded that the level of absences for back pain was a total of 24.5 days in 12 months, with 5 episodes, attributing all the absences to back pain rather than the 13.5 days. 3.48. The majority of factual findings in the report were about levels of absence. 3.49. In relation to adjustments, the appeals officer records that the respondent felt they had accommodated Mr George with adjustments and light duties for far too long and that it could no longer be sustained and that they were entitled to reach that conclusion. 3.50. There was no discussion in the appeal report of the adjustments already made or whether they could continue. It isn’t recorded what the adjustments were. There was no assessment of the impact of the adjustments on the company’s business or on Mr George’s performance. 3.51. On 10/01/17, the appeals officer’s recommendation that dismissal be confirmed was accepted. 3.52. In summary, Mr George had had 24.5 absences over 12 months to September 2016. Four episodes, that is 13.5 days, were in relation to his back condition. The rest were in relation to various minor conditions and self-limiting. Most recent were the incident of abdominal pain and a three day absence with a urinary tract infection. There had been no absence since 23/09/16. 3.53. The stage one warning in respect of absences was issued on 9/11/16 for six months and there had been no further absences. 3.54. He had had help throughout from other members of the team, including agency workers. At the point of dismissal, he would still have struggled with heavy lifting, in particular team lifting, but he was ready to go back to a more substantial proportion of his normal workload and had been doing it with much less help over the last month. By the date of his appeal hearing, he had made a further marked improvement. 3.55. He has since found work, his current job being active and heavy.[4]Law 4.1. By section 98(1) of the Employment Rights Act 1996 (“the ERA”), 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.” 4.2. A reason falls within subsection (2) if it relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do or which relates to the conduct of the employee. 4.3. By section 98(4), “Where the employer has fulfilled the requirements of subsection (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.” 4.4. First therefore the employer must establish the reason or principal reason for the dismissal and that it is a potentially fair reason. 4.5. It must be true in fact or believed to be true on reasonable grounds (W Devis & Sons Ltd v Atkins [1977] AC 931, [1977] 3 All ER 40 HL) . If there are no reasonable grounds for a belief relied on as an important part of the reason for dismissal, the employer may be held not to have acted reasonably in all the circumstances in relying on it (Smith v City of Glasgow District Council [1987] IRLR 326, [1989] ICR 796, HL). 4.6. East Lindsay District Council v Daubney [1977] ICR 566 (EAT) shows that the reasonable respondent is under a duty to make reasonable enquiry as to the claimant’s capability in his role. 4.7. In the EAT decision in Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, [1977] ICR 301, Phillips J emphasised the importance of scrutinising all the relevant factors. ''Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?'' 4.8. The relevant circumstances include 'the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do'. 4.9. The Tribunal must be satisfied that the employer has acted reasonably in treating the ground as a sufficient reason for dismissal. The decision of the employer must in the particular circumstances of each case fall within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair (Iceland Frozen Foods v Jones [1982] IRLR 439). 4.10. It is not the function of the tribunal to substitute its own view for that of the tribunal. It doesn’t matter what the tribunal thinks of the claimant’s competence; it is what the employer thinks that matters, provided that that is the employer’s genuine and honest belief on reasonable grounds. 4.11. This was made clear by Lord Denning MR in Taylor v Alidair Ltd [1978] IRLR 82, [1978] ICR 445, when he enunciated the basic test which should be applied in deciding whether or not a dismissal was fair: ''Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent'.' 4.12. Sir Geoffrey Lane LJ said in the same case that the function of the tribunal was to decide 'whether the employers honestly and reasonably held the belief that the employee was not competent and whether there was a reasonable ground for that belief'. 4.13. Three factors relate to the assessment of reasonableness: the evidence necessary to establish that the employer has reasonably concluded that the employee is incompetent; the procedures adopted; and the question of to what extent the employer should seek alternative employment for the employee. 4.14. Sir John Donaldson delivering judgment for the NIRC in James v Waltham Holy Cross UDC [1973] IRLR 202, [1973] ICR 398 stated that: ''An employer should be very slow to dismiss upon the grounds that the employee is incapable of performing the work which he is employed to do without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground, and giving him an opportunity to improve his performance.''