Mr R R Sinclair v James Johnston & Co. of Elgin Ltd: 4107417/2024
JUDGMENT
The claim for unfair dismissal not being well founded is dismissed.REASONS
[1]The claimant in his ET1 seeks a finding that he was unfairly dismissed from his position as a Carding Operative with the respondents. The respondent’s position was that the claimant was fairly dismissed on the grounds of capability (a potentially fair ground for dismissal), because the claimant, because of health difficulties could no longer work night shift and no other role could be found for him.Issues
[2]Parties had prepared an Agreed List of Issues in relation to both the merits and remedy.Evidence
[3]The Tribunal heard evidence from Mr Julian Hilal, the respondent’s Head of Yarn, from Mr David Alistair Garrow, Head of Fabric. The claimant gave evidence on his own behalf.Facts
[4]The respondent company are a long-established business involved in the manufacture of wholesaling and retailing of luxury cashmere, fine wool and cloth, knitwear and accessories. The respondent has a mill at Elgin and in Hawick.[5]The claimant had extensive experience as a Carding Operative in the respondent’s mill. He had started work with them in December 1996. He had left their employment some years later but rejoined on 3 November 2009 and remained as a Carding Operative until his employment ended on 4 September 2024.[6]The claimant was given a statement of terms and conditions of employment (JBp.34-40) in or about January 2021. He had been given previous iterations of the terms and conditions of employment earlier in his employment. The contract indicated that he was to work on a three shift rotation (JBp.34). On 2 September 2021 the claimant received a letter from Julia McGlashan, the respondent’s People Director confirming the three week rotation shift pattern (JBp.41).[7]The claimant always worked in the “Yarn” Department. He was highly experienced, hard-working and well thought of. He would often train or mentor new employees.[8]The Yarn Department was located in various buildings marked 36, 37, 38 and 39 on the site plan (JBp.114). The claimant’s job was to work as part of a five person team operating carding machines. There was a three-shift rotation which involves employees working day shift, back shift and night shift. Accordingly, the claimant worked night shift for a week every three weeks and had done so for some time. This was the pattern other than during the COVID pandemic when Carding Operatives were only required to work two shifts (early and late). From 6 September 2021, the Carding Operatives including the claimant were contractually obliged to resume working a three-shift pattern which included a nightshift.[9]Over the years the respondents have not found it easy to recruit or retain staff. Accordingly, they try and retain experienced staff such as the claimant. Every team operates eight carding machines. The respondents try and operate what they call a “balanced scheme”. They have an member of the team that they refer to as a “floater”. There are a number of reasons for this, one of which is that although the machines can operate with fewer employees and in the past sometimes operated relatively regularly with four employees this was not deemed to be efficient. The respondent produces high quality yarn and the yarn being produced has regular colour changes requiring the machines to be cleaned down between changes. A full team can achieve this more quickly than fewer numbers could. The additional staff member also allows for situations where someone else in the team does not turn up for a shift. It allows the team when fully staffed to work more quickly and efficiently and with less strain on the individual members of the team.[10]There are no Carding Operatives that only work during the day or work part time. Nightshift working and occupational health referrals[11]Every year the respondent asks those on nightshift to submit a questionnaire about their health. This questionnaire is then passed to an independent occupational health adviser to assess.[12]In or around December 2022 the claimant completed his annual questionnaire and attended an appointment with an occupational health advisor on 7 December 2022. The claimant explained that he was struggling with nightshift working.[13]The claimant was referred to NHS Borders who provided occupational health services to the company in December 2022 because of concerns over nightshift working. Their assessment (JBp.44) was: “I can confirm that Roy does not have any medical underlying health issues that would prevent him working nightshift. However, Roy reports he has been struggling with the nightshift pattern. He reports that he is only managing to have three-four hours sleep on a nightshift, his appetite is reduced, low in mood and he is tired when he undertakes his nightshift. Roy reports that he has been using AL (annual leave) on his nightshift and this has helped. I would advise to have a discussion with Roy to consider reducing his nightshifts to a minimum. Co-operation will be feasible. Roy reports he is happy to discuss this with his manager.”[14]After discussion with the Manager, Mr Hilal, the claimant was allowed to use annual leave to take a day’s holiday on the first Sunday of nightshift. The claimant found this of some help but his problems working nights did not improve long-term. He would suffer from disrupted sleep and became anxious.[15]The respondent prepared a note of various shifts the claimant had worked from 8 January 2023 until 9 January 2024.[16]The claimant consulted his G.P. and produced his G.P. records. On 16 February 2024 it is recorded: “Stress at work. Generally fit and healthy. PTHR told his Manager PT not to work nightshifts anymore. Manager not happy and saying PT may need to move departments or even not have a job any more. Understandably stressed.” (JBp.120)[17]The claimant’s average weekly pay amounted to £429.38 per week.[18]Following this consultation the claimant was sent to the respondent’s occupational health advisor “Sirona”. The referral (JBp.53/54) stated the reason for the referral as being “Roy had completed his required nightshift assessment and on his report it said he would benefit a full face-to-face appointment to discuss his overall wellbeing as he discussed having poor health related to working nights.”[19]The respondents received a report from Sirona (JBp.55/56) following an assessment on 23 January 2024. The report is of even date. A copy of the report was copied to the respondents with the claimant’s consent. The report highlighted the dangers which was chronic fatigue when working nightshift. The report noted the following: “Roy has given cause for concern regarding his fitness to work nightshift owing to discuss low mood, fatigue (a) and sleeping difficulties….. His sleep is short and disturbed (perhaps only 3-4 hours in total) and this is adversely affecting his focus and concentration whilst at work. He feels his mood lowering as his nightshift week progresses and his appetite alters.”[20]The recommendation of the report was to discuss with the claimant the operational adjustments that were available and would not involve nightshift working. The report noted: “I understand he has already tried to approach his manager to discuss working less hours – ultimately it would be a company decision as to what solutions are available to assist him.”[21]The matter was passed to Julian Hilal the Head of Yarn. He was concerned at the terms of the report and keen to try and find an accommodation with the claimant. The claimant was taken off nightshift working and a volunteer from another team agreed to cover his night shifts on a temporary basis. As there was no one available to cover for the claimant on the 4 February he agreed to work that night.[22]Mr Hilal wrote to the claimant on 23 February (JBp.57/58) inviting the claimant to a meeting on 26 February. He set out the purposes of the meeting was: “1. To discuss your occupational health report; 2. To confirm what the change could mean for you, identify your needs during the process and provide you with any necessary support or assistance; 3. To discuss suggestions and/or alternatives; 4. To discuss next steps; 5. To discuss the timeline of the process; 6. To answer any questions you may have.”[23]The letter also stated: “In advance of the meeting please have a think about anything specifically that you’d like to discuss in more detail and let me know if there is anything you wish to raise prior to the meeting.”[24]There is a Trade Union representative on site. The claimant was aware that he could have been represented at the consultation meetings but choose not to seek assistance from the Trade Union.[25]Mr Hilal met the claimant on 26 February as arranged. Mr Hilal was accompanied by Mr Callum Mathieson, an HR representative. Notes of the meeting were taken (JBp.59-62). The claimant accepted the terms of the report and confirmed that he had difficulty with nightshift as he found it difficult to sleep during the day. This had an impact on his focus and concentration at work. Mr Hilal explained that the company had a duty of care and had to ensure that no additional detriment to his health occurred. He was asked if he had spoken to his own G.P. and he indicated that he had contacted his G.P. for medication to help him sleep. It was envisaged that there had to be a consultation period of 30 days and this should be extended. Mr Hilal explained that he could get cover on the next rota’d nightshift. The claimant was told that he could if he wanted to use his holidays to cover any nightshift to discuss alternative work. Mr Hilal explained that there were no other jobs at present in the Yarn Department that would accommodate a two shift rotation i.e. one with no nightshift. The claimant asked about “picking cones”. This is where cone shaped objects (called yarn cones) used in the spinning process have internal labels to show the colour of the yarn used. They have to be removed before the cone can be reused. Mr Hilal explained that the position was filled at present and would in any event be part-time. The claimant explained that he would like to go down to part-time work (24 hours) and asked to look at vacancies available company wide. He was given a copy of current vacancies. It was noted: “Julian explained that as Roy is unable to complete a three shift rotation, and could ‘sub’ people in to cover Roy’s next nightshift pattern, he would be able to accommodate an extension of this consultation period. Especially given his performance, as well as his long service. However, explained that this could not be sustained due to the current demands of the business. Julian explained that he wished to find a resolution that would benefit both the company and Roy.”[26]At this point the company was facing a period of financial stringency and redundancies ultimately took place in other parts of the business but not in the Yarn Department.[27]Further referrals made to occupational health as the claimant was absent though illness from work on 25 March 2024. The reason given for absence was “Mental Health-Stress”. The reasons for the referral (JBp.63-66) were given as: “Since the last meeting with yourselves Roy has come off nightshift and been completing a two-shift rotation instead. However, unfortunately the Department and business are unable to sustain this long-term within his role, as he is currently going through a consultation period with the Company for his role as a Carding operative. We worked closely with Roy regarding additional roles that he could work in a two-shift rotation, but he has chosen not to apply for these. We have come to the end of the consultation period, and we were due to have a final meeting with Roy with his manager to discuss next steps and the consultation process in general. However, Roy made us aware that the consultation period has had a detrimental effect on his mental health and has subsequently been signed off with a statement of fitness for work until 28.04.24. Before the meeting was scheduled to take place, I spoke to Roy, and he made me aware that he feels he is unable to continue with the process due to his mental health at the moment. As such he has discussed with me the support available to him where we discussed having an appointment with yourselves to assess the ability to attend consultation meeting. As we were aware that the consultation has influenced his mental health, we want to ensure that we are supporting him. However, we are concerned that the longer the consultation process draws on, the worse his mental health will get.”[28]The claimant was assessed by telephone by the occupational health provider on 16 April 2024 and a report provided which, with the consent of the claimant, was sent to the respondents on 22 April 2024 (JBp.69-71). The report recorded the claimant’s view that his recent mental health has declined because of the ongoing consultation process. He described symptoms of anxiety and disrupted sleep. The report recorded: “Roy is experiencing an entirely normal situation of anxiety with low mood relating to the way in which he feels that he is being treated at work; and as such, I would anticipate a complete and full recovery in due course once his work-related stressers have been addressed and resolved. He has sought appropriate help from his own General Practitioner and has recently commenced treatment for his symptoms however, it is likely that this will take several weeks for his medication to reach a therapeutic level.”[29]The opinion given was that he remained unfit for work. It was estimated that he should be able to return to work between two and four weeks’ time but was not yet fit to attend a consultation meeting.[30]Mr Hilal delayed the consultation period. He wrote to the claimant on 4 June inviting him to a meeting on 12 June. He indicated that the claimant could take a work colleague or trade union representative with him. The claimant decided against taking someone to the meeting but he noted the purpose of the meeting as follows: “1. To discuss your occupational health report; 2. To confirm what the changes could mean for you and identify your needs during the process and provide you with any necessary support or assistance; 3. To discuss suggestions and/or alternatives; 4. To discuss the next steps; 5. To discuss the timeline of the process; 6. To answer any other questions you may have.”[31]The letter warned the claimant that although they would investigate all options available a possible outcome of the meeting could be termination of his employment.[32]The meeting took place as scheduled. Notes were prepared following the meeting. (JBp.78-82). Mr Hilal indicated that the person picking cones was still in employment and there was no vacancy. Mr Hilal offered a post in the Yarn store but the claimant indicated that he was not interested in that. He said that he did not want to move departments and said that he could not continue on nightshift. Mr Hilal noted that the claimant could not work nightshift. In his view this precluded him returning to his old role or any role that involved nightshift. He was asked if he would consider working in backwinding as the Dye House currently needed help and this would be a day shift post. The claimant refused this and said he didn’t want to move departments. Mr Hilal explained that he wanted Roy to stay in the company but if there were any roles in the department that would fit his needs then a transfer could be discussed allowing him to return to that department. Mr Sinclair did not want to do this and didn’t want to leave the Yarn Department. He was not prepared to consider any other role. The meeting notes record: “Roy stated that if he comes back, he still wants to complete a dayshift at 24 hours but within the Yarn Manufacturing Department. Julian explained this is not currently available which is why we are looking at current vacancies. Julian explained that a new role could not be made for Roy and Roy confirmed he understands this.”[33]It was also recorded that medication the claimant was on meant that he could not work with heavy machinery. He was taking medication for anti-anxiety and depression.[34]Mr Hilal summarised the position and finally Mr Mathieson asked if there was something that would ‘‘work for Roy’’ in another shift but he would only do dayshift and with reduced hours. He was asked to consider the other options but indicated that he wouldn’t (JBp.80).[35]There was a recess. Mr Hilal felt that he had run out of options. Following the recess Mr Hilal indicated to the claimant that he was to be dismissed. Mr Hilal hoped that this would make the claimant change his mind about the other roles. It was recorded that the dismissal was not a decision he was making lightly. He mentioned the claimant’s good performance and long service but explained that he could not put him back into a three shift pattern because the company had a duty of care towards him. They could not sustain a permanent two shift pattern. He said that his role needs to work three shifts due to the current business needs. It was noted: “• Roy confirmed he understood this;• Callum reminded Roy of the additional opportunities currently available and currently wide, but Roy refused;• Julian reminded Roy of his right of appeal;• Roy confirmed he understood this.”[36]The respondent company wrote to the claimant on 17 June detailing what had occurred between the consultation period and explaining their reasons why the claimant was being dismissed. He was given 12 weeks’ notice but also for the right of appeal. The letter recorded (JBp.86/87): “As agreed, during your 12 weeks’ notice period, if there are any new opportunities within the department that fit into your requirements that I am made aware of, I will contact you to discuss if this is something you would like to explore so you may apply.”[37]The claimant consulted solicitors. They wrote to the respondent on 21 June (JBp.90) in relation to the appeal. They stated: “Our client’s appeal is based on the company’s failure to make reasonable adjustments with his mental health difficulties. As acknowledged in the letter of 17 June, our client’s performance throughout his lengthy period of employment with your company has been exemplary….. Our client has proposed that he be accommodated on dayshift or by reduced hours either of which would avoid nightshift work but the position of the company appears to be that it is impossible for him to complete his duties as a Carding Operative out with a three shift rota. Our client does not accept that this is the case and seeks to appeal the decision to dismiss him and require the company to make reasonable adjustments and respect his medical difficulties.”[38]The appeal was passed to David Garrow, the Head of Fabric. He had previously been involved in the consultation process. He was of the same level in the company as Mr Hilal and was told that he had discretion to allow the appeal in full if he was so minded. Mr Garrow met the claimant on 27 June 2024. Detailed notes were kept of the meeting (JBp.98-103). The claimant had been offered the right to be accompanied. The claimant explained that another colleague had tried out the claimant’s nightshift for a period of six weeks and that Mr Hilal had said that this could not continue and was not sustainable. The claimant asked for reasonable adjustments namely to be taken off nightshift and to work less hours. He explained that he had 27 years’ experience in Carding. He explained that in the past shift patterns were all staffed differently and there was no necessity to have five operators. He indicated that he thought his experience could be used in another way such as by having a post for carrying out training. He was asked if he’d work in the Yarn store. The claimant confirmed he wasn’t interested and he wasn’t prepared to move departments (JBp.99). Mr Garrow said that he would see if other departments had made similar allowances in the past. The claimant stressed that he was only interested in returning as a Carding Operative unless the part time cleaning cones role became available.[39]Mr Garrow considered the appeal. He considered carefully the grounds for appeal set out by the claimant’s solicitors he wrote setting out his outcome on 22 July 2024 (JBp.104-107). He noted that a job in the Yarn store and in Back Winding had been offered (both roles did not have nightshift working) but had been refused as had other job opportunities. After considering the matter he accepted Mr Hilal’s view that being part of the Yarn Manufacturing Team meant that employees were required to rotate shifts to ensure there was a balanced resource available over 24 hours and it would not be possible to take the claimant off nightshifts permanently as this would result in the shift running short. He discounted creating a brand new post for the claimant working permanent dayshifts. He did not believe he could justify the cost. This would result in an additional cost for the business during a period where the company had to reduce costs where possible. He summarised the position that the Carding machines require five operatives in each shift to allow cover for holidays and sickness absence. This ensured that enough operatives are available for processing small batches of fast running yarn and cleaning the machines when different colours of yarn were being processed. He did not uphold the appeal and indicated that the decision to dismiss was sustained.[40]Following his dismissal the claimant remained unwell through low mood, stress and anxiety. He continued to be signed off work. In August 2025 he was successful in a claim for employment in Sport Allowance and on 17 December 2025 he was advised that he was entitled to Adult Disability Payment (JBp.165-167). Witnesses[41]I found the two witnesses called for the respondent company to be wholly credible and reliable in their testimony. They gave their evidence in a clear and professional manner and they had fully engaged with the issues and with the considerable responsibility laid on them in deciding whether or not to dismiss the claimant. I detected no animosity towards the claimant. They both wanted to try and keep his extensive experience and skills in the company.[42]The claimant is an honest witness. My view was that the anxiety and depression he was suffering appears to have made it difficult for him to be objective and I offer no criticism of him for this. He faced the end of a lengthy career in a job he enjoyed and was proud of. Where his evidence deviated with the evidence of the other witnesses, I preferred their evidence as being likely to be the more objective and reliable. Submissions Claimant[43]Mr Adams started by confirming that the claimant asserted that he was unfairly dismissed. He accepted that the respondent company relied on section 98(2)(a), namely capability related to health, specifically his inability to undertake the three-shift rota required in the carding department as being the reason for dismissal. However, the claimant’s evidence was that he remained capable of performing “work of the kind which he was employed to do” notwithstanding his inability to work nights.[44]The claimant gave evidence of his long experience in the carding department, his loyalty, and his history of training other operatives. He maintained that the department could and did function effectively with fewer than five operatives on nightshift. He accepted that night working was no longer medically possible for him but argued that this did not prevent him doing his core job on an adjusted basis.[45]The claimant had advanced two proposals during the process. Firstly, he sought redeployment to cone picking within his department, which he believed required additional staffing. The respondent had responded by saying that no such post was available. Secondly, he proposed remaining in his post as an Operative on a part-time basis but not working night shifts. He could cover holidays and absences. The respondent contended that there was no business case for creating a part-time post. The claimant, however, highlighted the concession by Mr Hilal that this proposal was never taken to senior management because he himself could not justify it.[46]The claimant accepted that the respondent offered alternative roles he could be redeployed into. One was in the dyehouse; he did not consider this viable, stating that it was a single-person role already adequately staffed. Another was in the yarn store. He accepted he had refused this post, stating that the job description required a three-shift pattern. The respondent asserted that such a pattern would not have applied to him, but the claimant maintained this was never fully explained to him. The parties’ evidence diverged on this issue. He accepted that other vacancies existed within the organisation but these would not utilise his specialist skills or experience.[47]On his behalf, it is submitted that dismissal was not necessary and that his request for part-time work was capable of accommodation, either by creating a new part-time role or by reducing his hours within his existing post. The respondent later invoked an economic argument based on a downturn in production, stating that a part-time role could not be justified. The claimant submits that, given his long service, experience and skills, he should have been accommodated and that dismissal was unreasonable.[48]In relation to remedy the claimant gave evidence that he remains unfit for work, that his medication has recently been increased, and that he doubts he will find work in the foreseeable future. He seeks a basic award, compensation for past loss, and an award for future loss. Respondent[49]The submissions assert that capability is a potentially ‘fair’ reason for dismissal.The respondent’s solicitor reviewed the essential facts of the case. The claimant worked as a Carding Operative, a role contractually requiring a three-shift pattern including nights. The COVID pandemic had led to temporary two-shift working, but the three-shift pattern resumed from September 2021. This was the most efficient way of working according to the respondent’s evidence. They carried out annual health surveillance for night workers and in 2022, the Occupational Health providers could not establish whether the claimant was fit for night work. A report in December 2022 stated there was no underlying medical condition barring nightshift but noted the claimant struggled with nightworking and recommended minimising nightshifts if feasible.[50]After this report the claimant’s manager introduced several adjustments, including allowing flexible use of annual leave and his movement to a floater role to allow the claimant to avoid or minimise nightwork. In 2023 the claimant missed one week with back pain. His first GP engagement on work-related matters occurred in February 2024 (JBp.120). A further health check led to a referral on 9 January 2024. The Occupational Health report dated 23 January 2024 concluded that the claimant was not fit for nightshift and that permanent exclusion from nights would benefit his wellbeing. It advised that continued three-shift working (i.e including night work) was likely detrimental (JBp55– 56).[51]Following this, the respondent arranged cover for most of the claimant’s forthcoming nightshifts. They had to ask a volunteer from another shift to do this. The claimant worked his final nightshift in early February 2024.[52]The respondent’s management believed that the arrangement could not be sustained long term. Accordingly, they began a formal consultation process. A meeting on 26 February considered the Occupational Health findings, the possibility of dismissal, adjustments, and alternatives. The claimant expressed a wish to work permanent dayshift of approximately 24 hours per week. Mr Hilal explained that a permanent day-only Carding Operative role did not exist, and nightshift cover could not be sustained indefinitely. The respondent explored alternatives. This included identifying a Yarn Store Operative role on equivalent pay, with full training and no detriment. The claimant rejected this role, stating he wanted to remain in Yarn Manufacturing. He also declined to consider company-wide vacancies. A later GP appointment on 28 March 2024 resulted in him being certified unfit with work-related stress for one month.[53]A further Occupational Health report (dated 22 April 2024) was obtained and this diagnosed situational anxiety but anticipated full recovery once workplace stressors were resolved. It advised he was not fit to attend consultation at that point but would be likely to be able to do so in two to four weeks. The respondent delayed the second consultation meeting until 12 June 2024. The claimant attended the meeting on his own.[54]At that meeting, he rejected both the Yarn Store role and a backwinding role in the Dye House, the latter being day-shift only. He stated he would only accept a dayshift role of about 24 hours per week within Yarn Manufacturing. No such role existed. The meeting adjourned, after which the respondent decided dismissal was unavoidable, given his inability to restart a three-shift rota and the rejection of alternatives. A letter of 17 June 2024 confirmed the decision and the claimant’s right of appeal.[55]An appeal followed. It was conducted by Mr Garrow, who had taken no previous part in the matter. He was head of another department. He had full power to allow the appeal and reverse the original decision. The claimant again attended on his own. He maintained that the respondent ought to have found a part-time dayshift Carding Operative job for him. He refused departmental moves, and said that he would only take a cone-picking role within Yarn Manufacturing. Mr Garrow made further enquiries for vacancies/possible roles but ultimately rejected the appeal. Ms Herrell then addressed the legal framework. She submitted that the Tribunal must determine the fairness according to the band of reasonable responses. It was she said sufficient for the employer to honestly believe that the employee is incapable (Alidair Limited v Taylor 1978 ICR 445). The Tribunal should not substitute it’s opinion for that of the employer (Iceland Frozen Foods Ltd v Jones (1982) IRLR 439).[56]Ms Herrell also referred to the case of East Lindsey District Council v Daubney (1977) ICR 566 which emphasised the importance of making decisions with up-to-date medical information. The case of Taylorplan Catering (Scotland) Ltd v McInally (1980) IRLR 53 EAT stated that although the employer had a duty to consider alternative employment this did not go so far as to require them to create a special job for them. This was also the ratio in the case of Merseyside and North Wales Electricity Board v Taylor (1975) IRLR 60.[57]The respondent’s solicitor also quoted a passage from the case of Garricks (Caterers) Ltd v Nolan (1980) IRLR 259: “Clearly employers cannot be expected to go to unreasonable lengths in seeking to accommodate someone who is not able to carry out his job to the full extent. What is reasonable is very largely a question of fact and degree for the industrial tribunal.”[58]The respondent’s position was that the principal reason for dismissal was medical incapacity to perform contractual nightshifts. It asserts that it acted reasonably: it obtained occupational medical advice, consulted over several months, made temporary accommodations, explored alternative roles, and afforded the claimant the opportunity to be accompanied. It argued that it had no obligation to create a new role, nor to convert a three-shift post to permanent day-shift working. At the time of the dismissal business conditions, had suddenly altered and there was a downturn in work and cost-control measures in place which limited flexibility. The dismissal was in her submission fair.[59]It was noted that the claimant did not seek reinstatement. The claimant failed to mitigate his losses by rejecting suitable alternative roles and undertaking no job search efforts after dismissal. Any losses were caused not by the dismissal but by the claimant’s reaction to the process, and that, applying Chagger v Abbey National and Polkey v AE Dayton Servoces, compensation should be substantially reduced or extinguished. The respondent also argued that he was guilty of contributory fault under sections 122(2) and 123(6) ERA 1996, (Nelson v BBC and Slaughter v C Brewer) on the basis that the claimant accepted dismissal could have been avoided had he accepted reasonable alternatives. Discussion and Decision[60]The Tribunal firstly had regard to the terms of section 98 of the Employment Rights Act 1996 which provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason, or principal reason, for the dismissal and that it is a potentially fair reason for dismissal.[61]I noted in this case that the respondent argued that it had dismissed the claimant for reasons of capability (a potentially fair reason falling within section 98(2)(a) Employment Rights Act). The claimant accepted this had been the reason for his dismissal. The issue, accordingly, for the tribunal was to determine whether dismissal for that reason was fair or unfair in terms of section 98(4) of the Act.[62]I next had regard to the cases to which we were referred. In the well-known case of Spencer v Paragon Wallpapers Ltd [1977] ICR 301 in which the EAT held that where an employee has been absent from work for some time, it is essential to consider whether the employer can be expected to wait any longer for the employee to return. In Spencer Phillips J emphasised the importance of scrutinising all the relevant factors in an ill-health capability case: “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.” He added that 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.”[63]The Inner House of the Court of Session, in the case of SS v Dundee City Council [2014] IRLR 131 stated that the Tribunal must address this question and balance the relevant factors in all the circumstances of the case. Such factors include whether other staff are available to cover the absent employee’s work; the nature of the employee’s illness; the likely length of the absence; the cost of continuing to employ the employee; the size of the employing organisation; and the employee’s sick leave.[64]The Tribunal was also referred to the case of East Lindsay District Council v Daubney [1977] ICR 566 where the EAT stressed the need for a fair procedure to be followed, which included consultation with the employee, a thorough medical investigation and consideration of alternative employment.[65]The background to the claim is in many ways not contentious. The claimant accepted that he was no longer able to work nightshifts as he was required to do and that this situation was likely to be either permanent or long lasting. He was not prepared to move from the Yarn department and consider other posts away from that department. It is how the respondent company then approached this situation and the decisions it made which formed the substance of the case.[66]An unusual feature in this case is the apparent lack of written policies and procedures in relation to ill health dismissal available to help both the managers and employees involved in such processes. Tribunals are used to company’s which have created what is often referred to as a ‘‘policy rich’’ environment. No written policies were produced but it seems that there was an understanding, at least at management level, that the first step was to have a thirty day consultation period. The claimant was told that this was to occur and what the issues were for the company.[67]This was not a situation that led to any unfairness as under the guidance of the company HR department, Mr Hilal (who was accompanied at meetings by a HR Adviser) entered into a consultation process with the claimant, took appropriate occupational health advice and explained the process to the claimant. He was warned for example that his job was at risk but given the circumstances here it is not clear that this warning had ‘sunk in’. Otherwise, it is difficult to explain the claimant’s persistent hope that his employers would come up with a role that allowed him to stay in the Yarn department as a Carding Operative but not having to work nightshift and at less hours.[68]The evidence shows that the claimant was offered other posts of comparable status and remuneration but turned these down. He restricted Mr Hilal’s freedom of manoeuvre despite it being made apparent that any such redeployment might be temporary until a more suitable (for the claimant) post came up. In effect he tied their hands by insisting on remaining in the department, wanting to work 24 hours per week and refusing redeployment.[69]In general, how an employer organises their business is not a matter that Tribunals can intervene in unless some employment or other right is transgressed. The respondent was entitled to organise their shifts in accordance with their understanding of the most efficient way to do so. Essential to his was the requirement for staff to be able to carry out nightshift. The claimant criticised the requirement for five on a shift pointing to past situations where less staff were used. Mr Hilal is an experienced manager and he explained the clear rationale for the adoption of the five person shift. He conceded that in a pinch the shift could operate the machines with four or even three staff. This was he said unsatisfactory. It was not efficient and led to more mistakes and more pressure on the remaining staff.[70]The respondent demonstrated a clear and reasonable basis for their insistence that Carding Operatives must be able to take part in the cycle of shifts including nightshift. He explained that it would be impossible to use the claimant on a part time basis. He would be supernumerary and it would be costly in a time where the company was looking to cut costs. In practice he said it was often only when someone failed to turn up for a shift, for example through illness, that the need would arise for someone to fill in. The company could give no advance notice of these situations and could not guarantee a minimum number of paid hours to any ad hoc employee.[71]The procedure adopted by way of consultation was thorough and fair as was the appeal dealt with by Mr Garrow. The claimant accepted that in retrospect he should have considered getting Trade Union assistance at the meetings if for no other purpose than to get a more objective view of his position and the danger he was running in restricting his options to remaining in the Yarn department. He found it difficult to understand how the company could consider dismissing him given his loyal service and experience. The one criticism that can be made of the respondent is that their position in evidence is that they did not want to lose the claimant’s services. He was experienced and reliable and the respondent did not always find it easy to get staff.[72]If as Mr Hilal suggested in evidence he wanted the dismissal letter to be a wake-up call to the claimant to engage with the offers of continued employment it did not have that effect. Given the claimant’s state of mind and what seems to have been a loss of confidence in moving to another role a less drastic method engaging with him and persuading him that the company was seriously considering terminating his employment might have been explored. This however is viewing matters with the benefit of hindsight. It would be fair to say that both Mr Hilal and Mr Garrow seemed genuinely surprised that the claimant showed no interest in redeployment and it is unfortunate for all concerned that some accommodation could not be found.[73]Having expressed these views I should make it clear that the employer did act reasonably here, they had consulted and offered alternative work to the claimant and the claimant should have been aware that his job was at risk as he could no longer work nightshifts.[74]The dismissal was, in all the circumstances, a fair dismissal on the grounds of capability.