"The tribunal were quite satisfied that the applicant had an extremely poor attendance record which had persisted from the time that she had first started working for the respondent. From the computer analysis provided by the respondent it was apparent that since 1980 the applicant had been absent for a large number of days through most years in the period with the conspicuous exception of 1988 when the consequences of the final warning following the disciplinary interview in February 1988 had been to "reduce" unauthorised absence to 2 days in that year. This clearly demonstrated to the tribunal that the applicant had been able to respond to disciplinary warnings. However, it was also apparent to the tribunal that during 1989 and 1990 the applicant's absence of 190 days in 1989 and 217 days in 1990 were the highest absence record by far of the applicant and were clearly going to cause considerable difficulties to the respondent. It was not surprising that disciplinary action had been initiated. Had that disciplinary action regarding the absence of the applicant been concluded early in 1991, then it would have been difficult for the tribunal to find any reason not to uphold the decision reached by the respondent. However, the consequences of the decision to defer the disciplinary proceedings from February until May 1991 and for there to be no hearing until August 1991, meant that there was then a reasonably long period during which the performance of the applicant could be assessed in relative terms to the very poor picture that had been painted in 1990."
"15 The concern of the managers conducting the disciplinary hearings had been the fact that the applicant had had such a sustained history of poor and irregular attendance and that her credibility in suggesting that she could improve on matters was open to doubt to such an extent that neither of the managers involved in the disciplinary proceedings were prepared to concede that the applicant might be able to sustain an improvement over any length of time. However, by the time that the matter came for hearing by Mr Mayall, the applicant had been able to demonstrate from February 1991 that she was able to attend for months at a time without there being any absence. Furthermore, by the time that appeal came on for hearing in October 1991 there had been an even greater period during which there had apparently only been the one absence on the 8 October which was explained at the appeal hearing by the applicant's representative. It does appear to the tribunal that there was manifestly clear evidence to the managers dealing with the disciplinary proceedings that the applicant was demonstrating throughout most of 1991 a profound willingness to attend on a regular basis and to try to avoid the disciplinary proceedings being brought to a conclusion resulting in the termination of the applicant's contract of employment. For the managers therefore to conclude that there was no basis to believe that the applicant was able to sustain an improvement and for them to describe that as Mr Howarth did as conjecture appears to the tribunal to fly in the face of the factual evidence that was available to them. It would have been fair to the applicant and to the respondent if the disciplinary action had started at the 5 day letter stage and continued at that point. If the applicant failed to maintain her improvement, dismissal would have been the consequence.
"(3) Where the employer has fulfilled the requirements of subsection (1) then ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 that question shall be determined in the accordance with equity and the substantial merits of the case."
"This must be amongst the commonest, and probably is the most common, issue which falls to be decided by industrial tribunals. This is not to say that resolving it is always easy. It calls first for an examination of the employee's conduct and an evaluation of that conduct in the light of circumstances as they existed or as the employee reasonably thought or feared that they existed. Having decided where the employee's conduct fell within a spectrum beginning with the wholly reasonable and ending with the wholly unreasonable, the industrial tribunal then has to evaluate the employer's reaction to that conduct and ask itself whether in accordance with equity and the substantial merits of the case the employer acted reasonably or unreasonably in treating the employee's conduct as a sufficient reason for dismissing him or her."
"...For the managers therefore to conclude that there was no basis to believe that the applicant was able to sustain an improvement and for them to describe that as Mr Howarth did as conjecture appears to the tribunal to fly in the face of the factual evidence that was available to them."
"... It would have been fair to the applicant and to the respondent if the disciplinary action had started at the 5 day letter stage and continued at that point. If the applicant failed to maintain her improvement, dismissal would have been the consequence."