Cutsforth v Robert McBride Group Ltd [1995] UKEAT 646_93_0911

EAT
Cutsforth v Robert McBride Group Ltd
[1995] UKEAT 646_93_0911 · 1995-11-09
MR JUSTICE MUMMERY (PRESIDENT): On this appeal there is no attendance by the Appellant. Attempts have been made in correspondence to make contact with the Appellant. She was informed by a letter of 27 October 1995 that the hearing would take place today. In September 1995, attempts were made through a firm of solicitors called Payne & Payne to establish Mrs Cutsforth's position on the appeal. That firm sent a letter to the Tribunal at the end of September saying they tried to contact their client at the addresses on the file, but to no avail. They therefore treated themselves as without instructions, and were arranging to close their file. They had no address which they could give to the Tribunal, as there had been no response from any of the addresses that they had written to.As for the Respondents, they gave notice to the Tribunal that they did not intend to be present at the hearing today, as the Appellant could not be contacted and was unlikely to appear. They submitted a Skeleton Argument on their position and said that they would rely on those written submissions, if she did not attend. If she did attend, they would ask us to adjourn the case to allow their representative to attend. That was a reasonable proposal. It is unnecessary to adjourn the case because Mrs Cutsforth has not attended and we shall deal with the appeal on the basis of our reading of the papers and the Skeleton Argument submitted by the Respondents.The appeal is brought by Mrs Cutsforth against the decision of the Industrial Tribunal held at Hull on 17 June 1993. The full reasons for the decision were notified to the parties on 13 July 1993. The majority decision of the Tribunal was that Mrs Cutsforth was not unfairly dismissed. She appealed against that by a Notice of Appeal served on 17 August 1993. Her grounds of appeal were that there were errors of law in the majority decision in holding that her dismissal was fair. The Tribunal's decision was on the issue identified in the Originating Application and the Notice of Appearance. In her Originating Application, presented as long ago as 6 November 1992, Mrs Cutsforth complained that she had been unfairly dismissed from her position as a factory worker. She said she had been employed from March 1990 down to 21 October 1992. She said she had been dismissed for being in breach of current absence controls. She considered, for the reasons set out, that her dismissal was unfair.The company resisted the claim. Their case was that the reason for her dismissal was absenteeism. She had a poor attendance record. She had received a final written warning. In taking the decision to terminate her employment, they took account of her overall disciplinary record. The Tribunal set out the history of the matter. They reviewed in detail the events which led up to the dismissal, including written warnings and the particular incidents which gave rise to the decision to dismiss her. It is unnecessary to repeat the details.We have to examine the reasoning of the Tribunal for the majority decision in paragraph 14 of the full reasons. The Tribunal said that, on the facts set out in the previous 13 paragraphs, this was a dismissal for the reason of absenteeism. That was a conduct reason within Section 57 of the 1978 Act . There is no error of law in that conclusion. They correctly directed themselves to Section 57(3). That was whether, in all the circumstances, including the size, and the administrative resources of the company, the company had acted reasonably in dismissing Mrs Cutsforth for the reason of absenteeism. They analysed the position which revealed the disagreement between them. The majority thought that the system of absence controls was reasonable and that the company had acted reasonably from a procedural point of view, in applying it to her case. It took the view that the absence control established a system whereby a certain level of absence triggers a procedure; the absences of an employee are considered. Then disciplinary action is taken, only if appropriate, after all the circumstances have been considered. The Tribunal found that, at the disciplinary hearing and the appeal, Mrs Cutsforth was afforded a reasonable opportunity to say anything she wished. They had some criticisms of what they described as "untidy" procedures in the appeal, but said that, in their view, it was essential that he [Mr O'Donnell] should make a decision himself, without Mr Blackburn being involved in the decision making process.Despite those criticisms of the procedure, they said they were satisfied in the end that all the relevant matters were brought out at the appeal hearing. They were satisfied that the decision was made without any advice or observations by colleagues on the merits. They referred to the disagreement of the minority member. He did not share that view. They addressed the next question: whether, leaving all these matters on one side, dismissal was beyond the range of response of a reasonable employer. On that, the majority accepted that, whether or not an employee is to blame, an employer is entitled to have regard to his own interests into the level of absence which can be accepted, no matter what the causes are. Their conclusion was that there was a fair dismissal.The minority Member took the view that it was beyond the range of responses of a reasonable employer. For the reasons given by the majority, it was held that Mrs Cutsforth was not unfairly dismissed.The only points which we understand are taken by Mrs Cutsforth on the appeal, are set out in her grounds of appeal:
"(a) The majority of the Tribunal were wrong in law to hold that the decision to dismiss the appellant was fair. (b) The majority were wrong to uphold the "absence controls" laid down by the Respondent Company as the same did not allow any compassion, sympathy or understanding as could be expected in a case of this nature. (c) The majority were wrong in law to uphold the Respondent's view that the last two absences of the appellant in August and September 1992 were unauthorised. To uphold the dismissal as fair suggests blameworthy conduct which could not be the case as submitted by the member who gave a minority dissenting decision. (d) The Appellant adopts the decision of the minority member and submits that that decision is the correct decision in law on the basis of all the evidence available to the Tribunal. (e) The Tribunal failed to recognise that the Appellant was not in any event in breach of the Respondents absence controls and therefore should not have been dismissed even on the basis of the Respondents procedures."
Those grounds were settled by the solicitors who had previously represented her, Payne & Payne. It is clear that those grounds are not apt to raise legal points. They either consist of a general assertion that it was legally wrong to find that she had been fairly dismissed, or they raised questions which relate to findings of fact, or questions of factual assessments by the Tribunal on the matters in dispute. She adopts the minority dissenting opinion, but that was based on a different view of the facts from that taken by the majority. It does not seem that there is any arguable error of law in this decision. The Tribunal was entitled to come to the conclusion that the dismissal was fair, on the basis of all the facts found. They correctly addressed the issue whether there was a reason within Section 57(1). They found there was a conduct reason. They correctly addressed the questions whether the dismissal was fair, having regard to the procedure, the size and nature of the undertaking and all the other circumstances. They came to the conclusion that the decision to dismiss was in the range of responses of reasonable employer. Even if we were inclined to take a different view of the matter, which we are not, that would not evidence any error of law on the part of the Tribunal.The appeal will therefore be dismissed at this stage as unarguable. We should state that, in coming to this conclusion, we have had regard to the written submissions sent in by the company, referring to a number of authorities, and making the overall point that the Tribunal had correctly applied the law on unfair dismissal and fair procedures for arriving at a decision to dismiss. The correct criteria were applied. We agree that, for those reasons, there is no ground for allowing this appeal. The appeal is dismissed.