British Coal Corporation v Bowers [1994] UKEAT 1021_93_2807

EAT
British Coal Corporation v Bowers
[1994] UKEAT 1021_93_2807 · 1994-07-28

JUDGE HULL QC:

This is an appeal to us from the Industrial Tribunal sitting at Leeds under the chairmanship of Mr Morris, with two industrial Members.The Appellant is the British Coal Corporation. The Respondent, an employee whom they dismissed, Mr John Bowers.Mr Bowers is a man who is now aged 33. He was employed by the Coal Corporation as an underground electrician at Stillingfleet Mine. He was a long-serving employee. He joined on 11 July 1977 at the age of 16 and he served a four-year apprenticeship in his responsible and skilled task as an electrician. He continued to serve in that capacity and the next event which we need to note is that in January 1992 Mr Bevan, a new personnel manager, arrived at Stillingfleet Mine. He examined records of attendance and non-attendance and he decided, not without justification, that Mr Bowers' record of attendance was unsatisfactory. There were numerous absences.He embarked on a programme of monitoring absences. He did not pick on Mr Bowers, there were a number of others and that is all set out in the decision of the Industrial Tribunal at page 11. After starting in January, Mr Bevan wrote in February 1992 and there was an informal interview between Mr Bevan and Mr Bowers, in respect of these unauthorized absences, in March, and a letter was written.The absences continued. Mr Bevan called Mr Bowers in to a formal interview and a formal warning was issued following that interview in April.At that point it became clear to Mr Bowers that what was being alleged was that he had an unsatisfactory attendance record. What he had been thinking of on earlier occasions, I really cannot imagine, if it was only then that it became clear to him that that was what was being alleged.It was accepted on all sides that most of these absences were for minor medical reasons of which the authenticity and genuineness was not challenged. Matters were no better in July and, indeed, they were worse. There was a further interview, a further warning. In September we come to the fourth interview and a final written warning.The Tribunal dealt with all these matters quite properly but they did make some curious comments. In July Mr Bowers had told Mr Bevan that there were various personal problems. He had apparently problems with a lady. She had left him or something of that sort. The Tribunal comment that it is important to note that Mr Bevan did not go into these problems. Mr Bowers had said that he did not like to wash his dirty linen in public, one wonders whether this is really a realistic comment or whether it shows perhaps a misguided attitude by the Tribunal.In September there was again a question of personal problems and the Tribunal comment:
"Again there was nothing from Mr Bevan in the way of questioning to bring the details out."
Anybody who has been present during a 3 day defended divorce will know that that would have been no light task to impose on Mr Bevan.There was a fifth interview set up in November and that interview took place early in December. To show the details which were gone into, there were six days of absence, namely, two days (this was very recently), two days when the Applicant's car had a flat battery. One when the radiator of the car had gone, two days when he had a cold, one day when he had a sore nose. As I say, these medical complaints are accepted as genuine. As the Tribunal comment, there was a mixture of causes for these absences.There appears to have been some question of difficulty in sleeping and over-sleeping and, finally, there was an interview in January 1993. Mr Bowers came in for yet another interview and this time, as once before, it was with Mr Lewis, the manager of the mine. There had been further unauthorized absences and, on this occasion, after all these final warnings had been given - and written warnings - Mr Lewis concluded that the matter had gone to the point at which he should dismiss Mr Bowers and Mr Bowers was dismissed.We have been given a considerable analysis of the facts here. Amongst many documents which have been laid before us there are two schedules of absence. One of them, which I think comes from the Appellants, gives absence details during 1992, a large number of days of absence. Just reading a very few of them: toothache, ankle injuries, stomach pain (that led to absence of 5 or 6 days), two unauthorized absences, two days for toothache, two more unauthorized absences, toothache again, another unauthorized absence, then two days for depression and five days for anxiety and debility and yet another day for anxiety and debility. There it was.We also have another analysis, I think this is one from Mr Bowers' side and that sets out percentages. Between 9 February 1992 and 8 April 1992 there was a total of 32% of absences. Fortunately, the next three months went down to 12% but between July and September it was 40% and it is important to notice, in justice to Mr Bowers, that when he had received his final written warning in September, the rate did come down. Between September and December it was 12%, between December and when he was dismissed in January, it was down to 7%. It must be said in justice to him and, of course, this was conceded, that he had improved. As far as the employers were concerned, any unauthorized absence was one absence too many, so that was their attitude. They pointed out towards the end that although there were fewer absences, they were all or almost all unauthorized ones. That was the situation.We return now to the decision and the criticisms which were made of it. The Tribunal say in paragraph 5 on page 12:There has been a lack of clarity in the reasons for dismissal given by the respondent as to whether they relate to capability, that is to say that Mr Bowers was not fit for the job that he was employed to do because of his frequent sickness absences which they accepted as genuine, or whether it was for conduct. The unauthorised absences could amount to conduct but they form a very small part of this matter and simply saying that he was dismissed, therefore, for attendance and coupling all of those together seems to be an inadequate way of finding a reason for dismissal."It is submitted to us on the strength of such cases as International Sports Company v. Thompson [1980] IRLR 340 and Rolls Royce Ltd v Walpole , which by coincidence is reported immediately after that case, that that is a wrong approach, and we accept that. It is a wrong approach. It is wrong in several ways. First and foremost an employer is entitled in these circumstances to complain of absenteeism as a whole. He is entitled to say:
"Well, of course, some of it is sickness. I am not in a position to challenge that at all. Some of it is simply unauthorized. What I do say, as an employer, regarding my own interests as well as the employee's interest, is that this is excessive"
. What is looked for in those circumstances is not a minute medical investigation to see whether all that has been claimed is in good faith. In the nature of things, for a man who had a stomach ache or toothache or a bruised ankle or something of that sort, a post hoc investigation by a doctor could not possibly throw any light on the question whether that was genuine or not and a fortiori, of course, further enquiries about a single day's unauthorized absence or a number of days' unauthorized absence would be unlikely to yield any useful result, unless, of course, the man himself says, "There is good reason for this. My wife was suddenly taken ill. I had a family bereavement."The employer is required, of course, to act fairly in those circumstances. The employee may very well choose to say why he was absent and should do so, but if not, then the employer should enquire, should warn and should listen carefully to any explanations and excuses which are given. But the employer is not required to embark on the intellectual exercise which the Industrial Tribunal said here that he should do, saying, "This relates to capability. This is a matter of conduct. This is some other substantial reason." That is shown very plainly by the case of International Sports Company Ltd v Thompson , which was cited to us. Other cases have followed that, including the Rolls Royce case. The Tribunal themselves were referred to International Sports Company v Thompson and they cited from that:
"Where an employee has an unacceptable level of intermittent absences due to minor ailments, what is required is, firstly, that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings after the employee has been given an opportunity to make representations. If there is then no adequate improvement in the attendance record, in most cases the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee."
They were very right to refer to that, but they go on to make what appears to us to be an extraordinary comment:
"That is perhaps an oversimplification of what is required under the terms of the Act"
An extraordinary comment to make about a case which had been fully argued before this Tribunal and in which Mr Justice Waterhouse and his colleagues in this Tribunal had given guidance on this matter.To say that it is an "oversimplification" is an extraordinary comment. It may be that the Industrial Tribunal would feel that not everything said in a case in the Employment Appeal Tribunal applied, or that none of it applied, to the facts or in particular circumstances. All the glosses (as they must be), in which this Employment Appeal Tribunal and indeed the Court of Appeal and the House of Lords, have said what an employer should do, are of course only glosses on the Act. What is wanted, first and foremost, is to look at the Act and see whether the employer has established the reason for dismissal. He is not obliged to say which category it falls into but he is obliged to prove why it is that the employee is dismissed and then he is, of course, obliged to give evidence to enable the Tribunal to decide whether he acted fairly or unfairly, reasonably or unreasonably, in treating it as a reason for dismissal. But simply to say that guidance given by this Employment Appeal Tribunal, which would appear to us to apply fair and square to the facts in this case, in International Sport Company Ltd v Thompson , is an "oversimplification", is apparently wrong and a misdirection.They then say that:
"... the ACAS Code of Practice as quoted in the IDS Handbook at page 136 relating to absenteeism is perhaps more enlightening."
That is not language which a court should use. A ministerial or other official publication may, indeed, enlighten people but to say that it is more enlightening than an important case, which is, on the face of it, binding on them, is extraordinary language.They then go through what they call the code of practice. They are mistaken to call it a code of practice. It is notes which ACAS very reasonably and properly hope will be of assistance, in so far as they are appropriate in any particular circumstance. They treat them really as a check list. We accept the submission which is made to us by Mr Jeans that to treat it in that way is wrong. Some of the comments which they make aggravate the impression that they are adopting an unrealistic attitude, with great respect to them, in this case. They say that the employers should go through the underlying reasons for absence and see whether they were work related. They record that it was suggested by Mr Bevan that Mr Bowers should see a doctor "but then that line was not subsequently followed up by Mr Bevan". One wonders why Mr Bevan, having reasonably enough suggested to Mr Bowers that he should see a doctor, should follow it up. "Have you seen the doctor yet? What did he tell you? What advice did he give you? Are you taking the pills regularly?" It seems an extraordinary enquiry to embark on.Then the Tribunal go on to cite from the guidelines:
"Then, if after investigation it appears that there were no good reasons for the absences the matter should be dealt with under the disciplinary procedure."
Then they say that:
"Of course, in these cases the majority of absences were for good reason, that is to say sickness which was accepted."
"Where the absences arise for temporary domestic problems, the employer in deciding appropriate action should consider whether an improvement in attendance is likely".There has been no evidence that that was considered or, indeed, investigated properly or considered in depth.Again, apparently the suggestion is made that the employers should have gone into Mr Bowers' domestic affairs.They make other points. Having quoted again from what they call "the code":
"If there is no improvement then the employee's age, length of service and performance, the likelihood of a change in attendance, the availability of suitable alternative work and the effect of past and future absences on the business should all be taken into account in deciding appropriate action."
Of course, it is a matter of commonsense. On occasion it will be important to take into account some of these matters or all of them or they may not be of great importance but they then go on as follows:
"Here there was a considerable improvement [that is a very just comment] but, even setting that aside, no evidence seems to have been given that the employee's age, length of service and performance, ... seems to have been taken into account."

That again appears to be a strange observation -

"No evidence seems to have been given."

They should know what evidence was given. It was their duty to enquire, of course, with the assistance of Counsel and the solicitor who had laid the evidence in front of them, and they should have asked about these matters if they appeared to be important. Why then regard them as matters to be commented on later when the judgment is given, if no questions had been asked about them? It does seem very strange.The comment which is made to us by Mr Jeans, the fundamental submission, is that here they could not sensibly approach the question whether the employer had acted reasonably in all the circumstances, because they had started off with a misdirection to themselves that the employer was not entitled to treat the matter all together as one of absences due to minor illnesses or other matters, but was obliged to separate them intellectually and show which were due to illness, and which were due to other matters and to analyse them separately. That is a misdirection. We accept that submission. It does appear, therefore, that Mr Jeans is justified in his subsequent submission that it may have been very difficult for them to approach the question whether the employer had acted reasonably.He goes on to read:
"7. Add all that to the situation where the applicant wanted to appeal and was effectively denied an appeal by failure to give notice of the appeal to him then the situation is clearly this, that the respondent failed to properly analyse a fair reason for dismissal and that in treating the whole of the attendance record, the majority of which was for acceptedly genuine sickness, as the reason for dismissal, treating it as misconduct, the respondent failed to properly address the question of the 'fair reason' under the Act for dismissal."
It would be very difficult to find any clause in that rather long sentence which was actually supportable. The applicant was not effectively denied an appeal. It appears - it was not gone into - that he did not receive notification of the appointment. At any rate, he said that he did not hear about it. That was not the subject of his application to the Tribunal, he did not complain of the absence of the appeal, he made apparently no effort to get the appeal reconstituted. The union, so far as we know, made no attempt. It appears the union treated the matter in a rather off-hand way. Certainly, there is no suggestion that an appeal would have put all these matters right or might have put any of these matters right.The Coal Board were criticised because they failed properly to analyse the reason for dismissal. That appears to us to be misconceived, as we have already said. They go on:
"In any event, clearly, the respondent did not act within a reasonable range of responses in this matter because it certainly failed to follow the majority of the guidelines in the ACAS Code of Practice on these matters which set out the range of reasonable responses for the reasonable employer."
Mr Jeans says that that, too, is an error of law. We accept that submission. It is not ACAS which sets out the range of reasonable responses. It is the Tribunal itself, which has to apply its mind, with the assistance of any guidelines which it thinks right to adopt, and with its own wisdom and knowledge of industrial matters, which is very considerable, it is for them to say what is the range of reasonable responses. Certainly to go through a checklist of ACAS guidelines, however well intended, which were certainly not intended to apply rigidly to any particular case, and say that that sets out the range of reasonable responses, appears to us to be a mistake. They go on:
"The tribunal has tried to be careful not to step into the shoes of management in this matter and say what it would have done but, clearly, the absence of all those steps, the fact that the applicant had considerable improved at the time he was dismissed, [they were quite right, as I say, about that] that there were no clear guidelines laid down as to improvement and the failure to effectively let him have his appeal all go to show that the employer failed to act reasonably in treating the reason it put forward, which is as we say hardly a reason under the Act, for treating that as a sufficient reason for dismissal."
There they are repeating many fallacies as they appear to us to be. They also said that no guidelines were laid down for absenteeism.So far as management were concerned, and this was given in evidence, no unexplained absence was acceptable to management. To say that guidelines must be set, you may be absent for 10% of your working period, or 5% or 2%, seems to us to be going too far. No doubt it might be possible in particular cases to say to a person, who had grave difficulties at home, "Well, we shall not take exception if, bearing in mind your children's illness or your wife's illness, you absent yourself for perhaps one day a fortnight." It might be possible, in those circumstances, to give some guidance to the employee but, bearing in mind that matters such as these minor illnesses would arise entirely unexpectedly, to lay down guidelines for the amount of absence which would be tolerated seems to us to be going too far. It might or might not be possible.It does appear that this Tribunal not once but many times misdirected itself and that this was fundamental to the decision which it reached in the case. We have been pressed by Mr Jeans to say that there was only one answer possible in this case and that was that the dismissal was fair.We have been pressed by Mr Short to say, on the other hand, that despite all these imperfections there was only one possible answer here and that was that this dismissal was unfair.We are not able to accept either of these submissions. We note certain parts of the evidence which, if we were trying the case on paper, as a tribunal of fact, (which is precisely what we are not) would tell powerfully with us. In particular, we have noted, of course, in favour of Mr Bowers, that he undoubtedly was, in some ways at any rate, improving his performance.There may be a great deal more to it than that from his point of view and he may wish to say a good deal more about it than that. We think he should have a chance to do so, if he chooses to do so. We think that this hearing was deeply flawed by errors of law and we think the only proper course to take is to remit this case to a Tribunal differently constituted so that it can hear the whole matter again and we have no doubt that that Tribunal will direct itself correctly and consider the matter in accordance with the authorities to which we ourselves have been referred and which we regard as governing the correct approach both by employers and by industrial tribunals to this type of case. Of course, each party will have an opportunity to adduce such evidence as they wish before the Tribunal.