MR J F DAVIS v TIBBETT & BRITTEN GROUP PLC [2000] UKEAT 460_99_2902

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 460_99_2902

Case No Appeal No. EAT/460/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR J F DAVISAPPELLANT

TIBBETT & BRITTEN GROUP PLCRESPONDENT

Before

His Honour Judge Collins

Date 29 February 2000

[1]APPEARANCES For the Appellant Mr J Crosfill Free Representation Unit C/o M Bedford Row London WC1R 4EB For the Respondent Mr Woodhouse, Solicitor Messrs Cartwrights Solicitors Marsh House 11 Marsh Street Bristol B599 7BB JUDGE COLLINS: This is an appeal against the decision of an employment tribunal sitting in Ashford, the extended reasons having been promulgated on 9 February 1999. By its decision the tribunal decided that the appellant had not been unfairly dismissed.

[2]The history of the case is that the appellant was dismissed for persistent absenteeism through illness. At pages 57-58 of our bundle is a list of his absences during the period of his employment which ran from 13 August 1990 to 27 August 1998. The respondents' business is transport, their principal customer is Tesco. The tribunal found as a fact that they had stringent demands placed on them by their principal customer and the regular attendance of employees such as the appellant was an important factor in their business.

[3]Pages 57-58 show many absences over the years, but I will pay particular attention to the absences in the three years prior to the termination of the appellant's employment. From 21 August 1995 he was away from work for 37 days for injury to his chest and thigh from a falling fridge. In 1996 he had 1 day off for migraine, 2 days off for food poisoning, 24 days off because of a trapped nerve in his neck. In 1997, he had 96 days off because of a broken ankle, 11 days off at the end of the year for food poisoning and depression which continued for a further 10 days into 1998. In 1998 he had 1 day off for a stomach disorder and 1 day for a sleeping disorder after which there was a meeting at which it was agreed to transfer him to the night shift because he thought that might be more helpful. On 8 July, he sustained a muscle injury at work; he had 10 days off for that and then came back to work but subsequently had another 17 days off for the same injury. He came back to work yet again and finally had a further 10 days off for that same injury.

[4]Mr Crossfill who has appeared on the appellant's behalf here and in the employment tribunal and who has argued the case attractively, has conceded that on any view it is a serious absentee record. The way in which the employers dealt with it was as follows: on 11 October 1995, they gave a written warning (the terms of which are set out in the tribunal's judgment) which was to be on his personnel file for six months. On 17 September 1996, they gave a similar written warning and on 3 February 1998, they again gave a similar written warning. On 1 April 1998, the appellant was given a final warning, which he appealed unsuccessfully. Then on 15 June 1998, after his absence because of the sleeping disorder I have already mentioned, it was agreed that he would be transferred to the night shift on condition that he had three months continuous attendance and that the final written warning of 1 April 1998 was to remain in place. Then on 1 September 1998, after the three separate periods of absence because of the injury to his muscles, he was dismissed with pay in lieu of notice by Mr Uden. On 4 September 1998 Mr Edgar heard an appeal against that decision but confirmed it in writing on 14 September 1998. Four days later on 18 September the appellant issued his originating application.

[5]The tribunal criticised the use of the language contained in the warning letters, pointing out that it was couched in language appropriate for disciplinary warnings whereas the case had proceeded on the basis, subject to one matter which I will mention, of persistent absenteeism on account of genuine ill health. We agree with this criticism but also agree with the tribunal that the use of inappropriate language did not in itself taint the respondents' procedure with unfairness.

[6]It is well established by previous decisions of this tribunal that incapacity or persistent absenteeism for a variety of unconnected ailments in themselves minor, may be an admissible reason for dismissal and in those circumstances whether or not the employer is at fault being immaterial (See for example Lynoch v Serial Packaging

[1998] IRLR 510

). Mr Crossfill does not seek to argue against that general proposition, his point being a different one and clearly taken both in the Notice of Appeal and his skeleton argument. It is that in relation to one important area of fact, the tribunal failed to express its views and a view favourable to the appellant might have produced a different decision. I can illustrate the point by referring to the notes of evidence relating to the evidence of Mr Edgar, who held the appeal hearing from the decision to dismiss the appellant. At p45 in our bundle, he is recorded as having said:

'We don't have a sick absence policy which sets out detailed standards of attendance required or expected, we look at each sick absence case on its own merits.'

At p47 he gave evidence about the final muscle injury and the two further periods of absence, which that injury led to:

'I concluded even if the accident had happened, the two further absences were not reasonable, based on the I Appellants training and knowledge. I took the two re-occurrences into account as part of the larger issue of conduct. reviewed the Applicant's record to insure we had acted within our own policies and guidelines, i.e. evidence of counselling, offers to help – some of which had occurred prior and some during discipline. I felt Mr Uden's decision had been correct.'

Later on p48, he says: - ' I accepted he had injured himself on 17 July.' And on p49 (and it is of significance that this answer was in cross-examination):

'I accept that all of the Applicant's illnesses were genuine illnesses.'

[7]Mr Crosfill has drawn our attention to the Notice of Appearance at p14 of our bundle, where there is a suggestion that the employers were concerned about the genuineness of the muscle injury and the two periods of work taken off by the appellant on recurrence or continuation of that muscle injury. And it is suggested that this was a live issue for the employer during the course of the dismissal procedure and a live issue for the Tribunal during the hearing . It is submitted that the Tribunal should have grappled with that issue because if the employer had come to the view that all or any part of absence attributable to the alleged muscle injury was not genuine, the decision to dismiss was unfair, the reason being that the employers failed to make adequate investigation. At the very least it is said they should have contacted, even if informally, the applicant's general practitioner, to find out whether or not he was prepared to give further information about the absences and the medical reason for them. I note that it is accepted by Mr Crosfill that all periods of absence were in fact medically certified.

[8]The question for us in those circumstances is whether or not there was a live issue of that kind, which should have been determined by the tribunal and which might have had a material effect on the decision had they engaged with it. It is necessary to look at little more closely at the notes of evidence. I have already drawn attention to passages from Mr Edgar's evidence. I refer to one other passage at p47 , where he is dealing with the appeal to him:

'I read papers leading up to dismissal. There were a couple of key items for me to resolve at the appeal hearing: - Was it plausible for someone of John's training including training in manual handling to have the kind of accident he claimed, and was it feasible for him to sign himself back as fit on two subsequent occasions, when he knew what the job entailed? Were these occurrences symptomatic of his history of non-attendance, or specific to the alleged accident?'

[9]Taking that passage in conjunction with the passage at the foot at p47, which I have already read, it seems to us that it is quite reasonable to read Mr Edgar's evidence to the effect that whether or not the original accident was genuine, the two further absences were not reasonable even though genuine. In International Sports Company Ltd v Thompson

1980 IRLR 340

a case of persistent absenteeism because of unconnected minor injuries, this tribunal at para. 20 of its judgment said:

'Paraphrasing words used by Mr Justice Kilner Brown in giving the judgment of the Employment Appeal Tribunal in The Post Office vMJ Jones [1977] IRLR 422, there are circumstances in which a reasonable employer is entitled to say '

Enough is enough'.'

[10]Mr Crosfill has focused attention on the use of the word 'reasonable' in Mr Edgar's evidence and submits that when Mr Edgar said the two further absences were not reasonable that meant that Mr Edgar was deciding that the two absences were not genuine. That of course conflicts with a passage which I have already read out from Mr Edgar's evidence at the top of p49:

'I accept that all of the Applicant's illnesses were genuine illnesses.'

It was open to Mr Crosfill in the course of his cross-examination of Mr Edgar to clarify any ambiguity there might have been in his evidence and to press him on the question of whether or not a belief that all or any part of the final series of absences was not genuine, was a factor in his decision to confirm the dismissal. But there is nothing in the notes of evidence to suggest that in the course of cross-examination, Mr Crosfill took the point and in those circumstances it seems to us that it is very difficult to take the point on appeal.

[11]Our understanding of the way the case proceeded before the tribunal is reinforced by the way in which the appellant was cross-examined. Although we accept that the respondents were not acting by a lawyer but by Mr Foreman, their Human Resources Manager, it is surprising that no questions appear to have been asked of the appellant designed to test the validity of the assertions, either that all or any part of his final series of absences were not genuine or that the question of that genuiness formed part of the decision to dismiss him.

[12]Nowithstanding the submissions which have been made it is hard for us to see, reading the notes of evidence, that this was a significant issue in the course of the hearing before the tribunal. The tribunal set out the history, formulated the law in an unexceptionable way and referred to International Sports Company Ltd v Thompson relying on this passage in the judgment :

'What is required in our judgment 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 then there is no adequate improvement in the attendance record, it is likely that in most cases, the employer would be justified in treating the persistent absences as a sufficient reason for dismissing the employee.'

[13]Mr Crosfill submits that decision is distinguishable on the facts. It was a case where the employee had been absent for about 25% of the 18 months leading up to her dismissal, mainly on the grounds of :

'Dizzy spells, anxiety and nerves, bronchitis, virus infections, cycititus, althruigra of the left knee and dyspepsia and flatulence.'

[14]It seems to us that the reasoning of this tribunal is of general application to cases where there are persistence absences for unconnected medical reasons, all those reasons being genuine in themselves. An employer is perfectly entitled to dismiss an employee who has been frequently absent for medical reasons over a significant period of time, whether or not the employee is in any way at fault because of the absences, provided that the employer has carried out a proper procedure including warning and counselling. In para. 16 the tribunal held that there was a fair review of the attendance record on each of the occasions when the appellant was given a warning.

[15]For these reasons we conclude that the tribunal were entitled to come to the conclusion they did. I ought to deal with a subsidiary submission which is that even on the basis that the employer was dismissing for genuine persistent absences with no element of deliberate malingering , the employers should have sought medical advice before taking the decision to dismiss. In International Sports Company Ltd , at para. 15 this tribunal said:

'They (that is the employers) were concerned with the impact of an unacceptable level of intermittent absences due to unconnected minor ailments. In such a case, it would be placing too heavy a burden on an employer to require him to carry out a formal medical investigation and even if he did, such an investigation would rarely be fruitful because of the transient nature of the employees symptoms and complaints.'

[16]It seems to us that those observations apply equally to this case. This is not a case where it would have been helpful to seek medical evidence. The appellant had over the years a large number of unconnected ailments. The employers were entitled to look at the whole history, entitled to look at the warnings which had been given and decide whether or not they were prepared to continue to shoulder the burden of an employee who had been absent on so many occasions. In para.18, the tribunal said:

'The Respondent looked to the past as an indicator of the future. Given the fact that the Applicant had a very unfortunate series of accidents every year since 1994, together with other sick absences in those years, in our judgement it was reasonable for Mr Uden and Mr Edgar to conclude that he was unlikely to meet the acceptable standard of attendance for the Respondent in the future. We find that in those circumstances, dismissal was within the range of response of a reasonable employer and this was a fair dismissal.'

[17]We find no error of law in that approach. For the reasons I have given, we reject Mr Crosfill's principal submission that the tribunal should have engaged with the question of the genuiness of the appellant's absence from work at the end of his period of employment and whether that genuiness formed a part in the employers' decision to dismiss and his further submission that the employers should have sought further medical evidence. This appeal will be dismissed.