MR R LEESON v MAKITA MANUFACTURING EUROPE LTD [2000] UKEAT 911_00_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 911_00_0911Case No Appeal No. EAT/911/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R LEESONAPPELLANTMAKITA MANUFACTURING EUROPE LTDRESPONDENT
Before
His Honour Judge J R ReidLord Gladwin of CleeDate 9 November 2000
[1]APPEARANCES For the Appellant MRS ALISON DOWN Solicitor Messrs Freemans Solicitors Jordan House (East) Hall Court Way Telford Shropshire TF3 4NN JUDGE J R REID QC This is an Ex Parte Preliminary Hearing of an Appeal by Mr Leeson against a decision of an Employment Tribunal, held at Shrewsbury on 3 May 2000. By that decision the Tribunal held that Mr Leeson had not been unfairly dismissed and therefore rejected his claim. The grounds on which Mr Leeson had been dismissed was set out in a letter at page 8 of the bundle of which relevant paragraph is in these terms:
"Further to our conversation yesterday in the presence of Graham Leith with Anne Reynolds taking notes, I am writing to confirm that you did not want to have a supporter with you and following your claim for company sick pay when you were playing golf the company has terminated your employment for gross misconduct for attempting to defraud the company."
[2]He had appealed against that decision and that decision was dismissed by Mr Harris. The position, so far as the Tribunal was concerned, on the evidence before them was that no reasonable employer could have concluded that the applicant had attempted to defraud the company. The circumstances were that he was indeed off sick, that he had a doctor's sick note, that he had been feeling better and he had decided that it was not a bad idea to play a gentle game of golf, even though he was not fit enough to return to work and he was not expected to return to work at that time.[3]The Tribunal, however, went on to decide that the Respondents had acted reasonably in treating what they describe as the other principal reason, as sufficient reason for dismissing the Applicant. That other principal reason which was not in fact the reason for which he was dismissed was recorded in paragraph 3 of the decision of the Tribunal in these terms:
"It was important to the respondents to be seen to be tackling the absenteeism problem and they accordingly dismissed the applicant."
[4]It seems to us that it is at least arguable that a decision to dismiss someone who is off sick with a proper sick note, and in respect of whom there appears to be no evidence they had a bad absenteeism record simply because the Respondent wished to be seen to be tackling the absenteeism problem is a dismissal which cannot be properly characterised as fair.[5]In those circumstances it seems to us that the matter is one, which should go to a full Tribunal. It should be Category C and we will give a time estimate of 2 hours. We won't make a direction for Chairman's notes and there will be the usual direction for the exchange of Skeleton Arguments, not less than 14 days before the date which is fixed for hearing.