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Cite as: [1996] UKEAT 829_95_2106

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    BAILII case number: [1996] UKEAT 829_95_2106

    Appeal No. EAT/829/95



    At the Tribunal

    On 21 June 1996






    Transcript of Proceedings





    For the Appellant MR M FOSTER



    10-12 Parkhurst Road


    TN40 1DF

    For the Respondents MR N RANDALL

    (of Counsel)

    The Solicitor

    The Post Office

    Impact House

    2 Edridge Road


    CR9 1PJ


    JUDGE J HULL QC: This is an appeal to us by Mr Nicolson against a decision of the Industrial Tribunal sitting at Ashford in Kent under the chairmanship of Mrs Cooney, with two industrial members. To that Tribunal Mr Nicolson had complained of unfair dismissal. The dismissal took place by the Post Office, the Respondents, on 19 January 1995.

    Mr Nicolson had been with the Post Office since May or June 1989. He was a postman and driver employed by the Post Office at St Leonards On Sea in Sussex. His employment appears to have been made less satisfactory than it should have been by frequent absences. There were a number of these recorded. We have been shown the documents. I am not going to go all through them, but if one looks at page 11 of the Respondents' bundle, one sees on there and the next page (it starts at page 11 and then it goes backward in time from 1994 right back to the start of his employment in 1989), that all through that period there are a number of comparatively minor absences. Most of them, though not perhaps all, are alleged to be for sickness. There is no allegation of bad faith against Mr Nicolson.

    There is another list of them, rather easier to read, at page 39, which is a record of some proceedings in connection with Mr Nicolson's dismissal and there one can see that his absences are compared with those of two other gentlemen in the employment of the Post Office and there were absences in each year from 1989 onwards. There were 5 days absence in 1989, 16 days in 1990, 44 days in 1991, 27 days in 1992 and 10 days in 1993. It is in respect of those matters, about which Mr Nicolson received 7 warnings, that he was eventually dismissed.

    There is a clear distinction in the cases between the proper approach of an employer to absenteeism (as it is sometimes called), minor absences occurring frequently, and a major absence which is caused by serious illness. If an employee (particularly a long-standing employee) is afflicted with a major illness, then of course the employer is put under a serious duty and a difficult one. He cannot dismiss the employee out of hand. That would be unfair. He must make proper enquiries and will generally be expected to obtain medical evidence. He will be expected to consult the employee about the matter; he will be expected to take a reasonable view of the time which the employee should be allowed to recover in the light of the medical evidence and such questions as whether the employee in the course of his convalescence may be able to return and be useful to some extent; all such matters must be looked into by the employer before he considers the question of dismissing the employee.

    Between that type of case and absenteeism (as it can be called, it is a portmanteau word) there is a clear distinction. If a person is absent from time to time for 3 days, 2 days or 1 day, and says that he had flu or a stomach upset or whatever it may be, then the employer is not required by fairness to employ a doctor on each occasion or write to the employee's doctor for a description of the illness and the likelihood of it recurring and that sort of thing. This is part of the everyday pattern of life, that some people, unhappily, are from time to time (rather regularly perhaps) indisposed or feel indisposed, often quite genuinely. An employer is not bound to enquire in detail into all those matters and, indeed, it might be felt oppressive to the employee if he did.

    So the employer is entitled to have a policy with regard to such matters and the Post Office in this case most certainly does have a policy on absenteeism. They have what they call "The Attendance Procedure". It is set out from page 4 onwards in the Respondent's bundle. It is agreed by the trade union and it includes a series of stages through which a person who is inclined to absent himself goes.

    There are different criteria for an established employee and an employee who is a new entrant on trial and looking at page 9, which sets these matters out: Stage 1 will be reached if there have been 4 absences or 14 days in a 12 month period. Then, after a warning, Stage 2 will be reached if there are 2 absences or 7 days in any 6 month period and so on. We are not concerned with the details, but that is the policy of the Post Office and that it what was applied in the case of Mr Nicolson.

    I think I cannot do better than simply read the admirably short and concise decision of the Industrial Tribunal which is at page 3 of our main bundle. The Tribunal, in its Extended Reasons, said as follows, after setting out the dates and the operation of the attendance procedures:

    "1 ... the irregular attendance procedures have been agreed with the Union of Communication Workers and we have found that having regard to the nature of the Respondent's business, these procedures are reasonable.

    2 The Applicant had failed to meet his attendance requirements and had been taken by the Respondent's management through the procedure to dismissal on two occasions prior to 1995, firstly in April 1990 and secondly in February 1994. On both occasions his appeals against dismissal were allowed.

    3 Mr Nicolson was finally dismissed in January and his appeal to Mr Haines was not successful. The absences which caused the termination of the Applicant's employment were a day off with a piles condition and several days off with influenza. These were genuine illnesses and the Applicant produced a letter from his doctor at the appeal hearing stating that far from malingering the Applicant should have taken more time off with these conditions.

    4 We have every sympathy with the Applicant who was clearly making every effort last year to meet the Respondent's attendance requirements. Both Mr Kemp and Mr Haines however, could not be sure that the Applicant could manage a sustained improvement in his attendance and having regard to the Applicant's very poor attendance record in the past, we have found that they were reasonably entitled to take the view that enough was enough.

    5 The decision to dismiss the Applicant was therefore within the range of responses available to a reasonable employer in the circumstances of this case, and it is our finding that the Respondent acted reasonably in treating the reason for the dismissal, namely the Applicant's lack of capability to do his job, as a sufficient reason in all the circumstances, (including the size and administrative resources of the Respondent's undertaking) and having regard to equity and the substantial merits of the case.

    6 For these reasons the application must fail and be dismissed."

    There are two points made by Mr Nicolson on his appeal. The first could be called "a procedural mishap" as he says it was. He says that, when he attended at the Tribunal on the morning of the hearing Mr Randall, who is Counsel for the Post Office, put in the Post Office bundle. Mr Randall tells us that that bundle had previously been sent (very properly) to Mr Nicolson.

    Mr Nicolson then sought to put in his own little bundle. We do not know exactly what was in that little bundle, but it is said at any rate that it contained, among other papers, a reference to the record of another Post Office employee. What is said by Mr Foster, who appears for Mr Nicolson today, is that when Mr Nicolson sought to put that little bundle in (he wanted the Tribunal to look at it) the Chairman roundly declared that it was not relevant and rejected it. That, he says, is his recollection. Then he gave evidence, in due course, after the Post Office witnesses and he says then again he sought to put in the bundle, but unsuccessfully.

    If that is correct, it is a truly remarkable thing. The Chairman at the outset and the members would, one would have thought, known nothing of what was in this little bundle, and would have wished, at any rate, to make sure that it was nothing relevant and would themselves have looked at it. They might have then said, "Well this appears to relate to something which is nothing to do with this case", and called on Mr Randall to see whether he agreed that they should look at it, and called on Mr Nicolson to tell them why they should look at it, or they might defer all that until later. But simply to reject papers, which a party wishes to lay before the Tribunal, without knowing what is in them and the nature of the papers, seems to us extraordinary and we certainly hope and believe, wholly uncharacteristic of the way in which a Tribunal should conduct its enquiry, being charged, of course, to enquire.

    It is also said that that is supported by an affidavit sworn by Mr Troy Le Cheminant. He lives at Bexhill on Sea and he says, in his affidavit:

    "1. I attended the hearing at Ashford as an observer. I am a member of the General Municipal & Boilermakers Union and attended the Tribunal to broaden my knowledge.

    2. At the beginning of the hearing the Post Office Representative handed in a big Bundle of Documents which the Tribunal accepted.

    3. I specifically recall that the Appellant, John Nicolson, who was representing himself then asked if he could submit some Work Record Sheets that he had apparently not previously disclosed.

    4. The lady who chaired the Tribunal then asked the Post Office Representative if they objected. They said that they did object and she, therefore, declined Mr Nicolson's request. He was not, therefore, permitted to produce them.

    5. In so far as I recall the documents were never handed over to the Chairman as the request was refused before they were in any way considered."

    That affidavit was not sworn until 14 March 1996, but that is what Mr Troy Le Cheminant says.

    The Chairman herself was asked about this, as of course is in accordance with our procedure, and she asked the Regional Secretary of the Industrial Tribunals to write to us and said as follows:

    "I am instructed to say that as regards Paragraph 6(a) of the Notice of Appeal the Chairman's notes do not indicate that there was any application to allow the record of a comparator worker to be introduced as evidence. The Chairman feels sure that, had such an application been made, the Tribunal would have granted it since it would be her normal practice to do so in such cases."

    Mr Foster, of course, was not present before the Tribunal, but the other person who was was Mr Randall and in his skeleton argument, and he repeats it today, he tells us what his recollection of what happened is:

    "2.1 ... The Respondent contends that no such refusal was made [to receive the documents] and supports the contention of the Industrial Tribunal ... [he then refers to the letter]

    And Mr Randall's recollection is:

    "2.2 ... the Appellant first raised the issue of a comparator at the end of his own evidence [in other words right at the end of the case and he rightly says] This is borne out by the Chairman's notes of evidence at doc 16. At this stage there had been no suggestion of any comparator in the Appellant's Originating Application ... and no questions had been put to the Respondent's witnesses on this topic (see notes of evidence at docs 12 to 15). The Respondent therefore objected that the Appellant should not be able to introduce such matters at the very end of his case without the Respondent's being able to take full instructions. ..."

    Of course Mr Randall's witnesses had already given evidence.

    " ... The Tribunal agreed with the Respondent and, in addition, told the Applicant that, in any event, unless the case of the comparator was truly similar to his own it would be irrelevant. After this had been stated by the Tribunal the Appellant did not seek to introduce any further evidence regarding the comparator."

    That is what is said by Mr Randall. We are in a difficult position here. It is not our practice to hear witnesses and cross-examine. It is our practice, of course, to hear what people say about what happened below. It seems to all of us really beyond belief that, if documents were offered at the outset, this Tribunal, departing from all commonsense and everyday behaviour, refused to receive them, or that Mr Randall, in the circumstances, could have done more than say, "If there are some documents which I have not seen I should like to see them now". When, according to Mr Randall, they were introduced, and indeed the notes of evidence support this, at the end, it was only natural that Mr Randall should say what he recalls he did say.

    We have thought about these matters as carefully as we can. We see what the Chairman says, which would normally be conclusive and we have looked at the document itself (of which a little more later), but having thought about it as carefully as we can, we say no more than this; that we are not satisfied that there was any mishap of any serious sort and in particular the sort described here.

    It appears to us that if Mr Nicolson had pressed these documents upon the Tribunal and asked them to look at them, as opposed to merely producing them at the end in the way that he did, the Tribunal would most certainly have wanted to know about them; and that he was not stopped from putting the documents in at the end. It might also be added that it is common ground, as we understand it, that the complaint that there was a comparable worker who was differently treated was not previously raised; not in the complaint; and not before the management on the occasion of the hearings by the management; which is all the more remarkable because earlier in the year, in 1994, a member of management had particularly taken up the suggestion that two comparable workers were not treated in the same way, and had made very pointed enquiries of another manager, as to exactly why that might be.

    One of the documents, we are told, which was in this little bundle, is to be found at page 6 of the Appellant's documents, where we can see the document, and this is the only document in respect of which we understand a complaint to be persisted in (that is to say, it is said to be material). It is the absence record of a Mr Lee Elliot, a postman at St Leonards. It is only 1993 and 1994 that this record deals with. Mr Lee Elliot, in 1993, was absent for a number of days from work. On 2 of those occasions he was absent as a result of an accident on duty (which we understand is always disregarded by the Post Office in this connection) and on another day he was absent through minor matters of health. Then, in 1994, after some very minor absences, he was absent for 48 days with rheumatism in his hands (so it is said) and 152 days with tendonitis in his forearm. It is clear that this is, so far as 1994 at any rate is concerned, an utterly different case and could not possibly serve as a comparable case; for this was a case of the sort I have mentioned, a case in which a man was suffering from really serious chronic illness and where the Post Office must, if they were minded to take any action, have taken medical advice and looked into the matter as a purely medical matter rather than a case of absenteeism. But there it is.

    We are not satisfied that there was a procedural irregularity of any important sort and that ground of the appeal is not, in our view, made out.

    We turn to the second ground of appeal and that is, as Mr Foster put it, that this was an arbitrary dismissal and the Industrial Tribunal had no right whatever to dismiss the application. It was perverse of them to do so. He says that the Post Office behaved, at any rate latterly, in an arbitrary and, indeed, automatic way, treating their code with regard to attendance as if it were some sort of statute and simply automatically dismissing the Applicant, although the absences which led to his dismissal were only 2 short absences, one of 5 days and 1 of 1 day owing to minor, or relatively minor, ailments as to the genuineness of which there was, says Mr Foster, and indeed this is common ground, no doubt whatever.

    So we look to see about that and because of the nature of the complaint of perversity, we have been invited to look at the evidence, not only the written evidence but also the Chairman's notes of evidence and we have looked at everything to which our attention has been invited. I have already referred to the attendance procedure which lays down a series of stages and criteria for reaching a particular stage and, as the Tribunal remarked, in 1990 and again, in the early part of 1994, Mr Nicolson actually got so far through the stages as to be actually dismissed. On each occasion he appealed. On each occasion his appeal was allowed, not on the ground that anything irregular had happened, but on the ground that it was right to extend leniency to him. I have already referred to the overall picture of the absenteeism. I have also referred to the evidence where Mr Elliot, the Appeals Manager, in February 1994, asked some sharp questions about the possible inconsistency of the treatment of this employee as opposed to other employees.

    On 20 February 1994, Mr Elliott wrote a most important letter. This was the letter in which he said that it had been decided to allow the appeal (this being the second time as I say that Mr Nicolson had been dismissed for absenteeism). He said, amongst other things:

    "I must firstly state that I can fully appreciate the management concern over your level of sick absence. ..."

    The Post Office, of course, has to do its job every day. It is not possible for the Post Office just to close its shop because employees have not attended today, or something of that sort. That means that if a postman is not able to do his duty, the best they can do is to find a substitute and pay him overtime and even that will, of course, lead to considerable delays and extra expense. So they have a particular interest, perhaps more particular than many employers, in making sure that absenteeism is kept to a minimum.

    The letter goes on as follows:

    "... Despite warnings and opportunities to improve your attendance you failed to respond and I agree that it was appropriate to pursue your dismissal. However, after careful consideration of all that was said during the appeal, I have decided, very exceptionally, to allow you the further, final, chance which the appeal sought to prove you can attend to the required standard. Your appeal is accordingly successful, and on receipt of this letter you should contact the Delivery Office Manager ...

    You should clearly understand that my decision in your favour does not imply approval of your sick absence, which must be improved. To this end your attendance will continue to be monitored and subject to specific standards. If, therefore, you incur 2 absences or 7 days in any 6 month period within the 12 months from the date of this letter, consideration will again be given to the termination of your services."

    And then, a sentence on which Mr Foster lays great emphasise:

    "Your employment with Royal Mail now rests in your own hands, but if you fail to achieve the necessary standard of attendance you should not expect similar leniency to be shown yet again."

    So that was the letter which Mr Nicolson was, no doubt, glad to receive.

    And then (as I say) unhappily, Mr Nicolson was absent and so consideration was given to that. I should say that the Post Office makes a point in their procedure, with regard to absenteeism, of saying that the whole picture is looked at. It is not a case of looking at any particular incident. Indeed, it would not be fair to look at a particular incident, or might not be fair, because what the Post Office is seeking to do is not to punish for breaches of the rules, but to deal with a situation in which its interest is being seriously damaged through what may very well be something over which the employee has little or no control. They look at the whole picture.

    The next letter on page 44 is the Post Office saying that consideration, as a result of the 2 absences which I mentioned, is being given to terminating the service of Mr Nicolson.

    There are other documents which show this matter is being considered. Then, on what is said to be 14 December 1994, it is not a document which is actually dated, at page 49 and 50, there is an account of the interview which took place between Mr Kemp, a Manager and the Appellant, Mr Nicolson. Amongst the things which are recorded in that interview is as follows:

    "John [the Appellant] accepted his record was bad, he was looking to get a mortgage and asked BK [Mr Kemp] to consider giving him one last chance."

    At page 51 is the letter of dismissal signed by Mr Kemp. In the second paragraph he says:

    "I have listened carefully to the comments made by you, and after consideration I have concluded that you are unlikely to maintain any sustained improvement in your sick absence record."

    Throughout this bundle there are references to meetings and interviews and so on, and there are a number of references to Mr Nicolson's apparent indifference to the way in which the Post Office is affected by his absences.

    He appealed. Mr Haines, the temporary Appeals Manager, who records his decision at page 57 of the bundle, says:

    "The appeal concentrated mostly on Mr Nicolson's absence for piles and suggested that management would have proceeded differently had they been aware of this. I asked Mr Kemp about this point, who confirmed that he regarded the absences as all being genuine."

    And there are many details below of the warnings and so forth and the Welfare Officer's report. He says, and this is somewhat typical of what is written in this case:

    "Mr Nicolson's demeanour at the appeal was quite unforthcoming and he gave the impression of being unable to accept that his record is poor. Even his assurance to me about being able to achieve the standards, was accompanied by a comment that his absences were through no fault of his own and that his record was not too bad. He also seemed to think that evidence of interest in management, was enough to demonstrate his commitment to achieving the standards. Despite being given several opportunities to do so, Mr Nicolson offered no reassurance that his record would improve if he was given another opportunity.

    I share Mr Kemp's conclusion that Mr Nicolson is unlikely to achieve and maintain the required standards, and the appeal is therefore unsuccessful."

    So ultimately, after a great many ups and downs, which I have mentioned shortly, Mr Nicolson was finally dismissed by the Post Office.

    What Mr Foster says about that is this. First of all, he puts great emphasis on the fact that these 2 absences during this period (so to speak) of the final chance, were for matters over which Mr Nicolson could not have any control. Indeed, he was returning to work perhaps when he should not have done.

    But he says, first and foremost, just look at what is said in the letter of 20 February at page 41. Here was the sword of Damocles and there in the letter is written:

    "Your employment with Royal Mail now rests in your own hands ..."

    How could the Post Office, says Mr Foster, write that and then legitimately complain of something which, on the face of it, was not in Mr Nicolson's own hands? It was, if you like, fate, or an act of God; he became unwell.

    We are all of the opinion which I ventured to put to Mr Foster, namely that that overlooks entirely the interest of the Post Office and the purpose of this procedure. We also accept what is said by Mr Randall about that; that that is putting on this a construction which it simply will not bear. Mr Foster put this expressly, by saying it was impliedly a promise that if the matters which led to further absences were beyond his control, the Post Office would not act on them. But in fact, all the letter said was, "Your employment with Royal Mail now rests in your own hands", and that this was a further final chance.

    In those circumstances, it appears to us that this was not a point of law but a perfectly good point which could be made to the Tribunal of fact. It is impossible to believe that the Industrial Tribunal simply overlooked this important letter and what it said, in considering the facts of the matter.

    The Tribunal, having considered all the matters which were laid before it, concluded that the Post Office had established the reason and had, within the words of the statute, "acted reasonably in treating that reason as a reason for dismissal". Mr Nicolson had what might be called a shocking record of absence. We ask ourselves, in the light of all this, can we possibly say first of all that the Post Office were quite clearly and obviously and incontrovertibly unfair in dealing with the matter in the way they did? Can we go on to say, the Industrial Tribunal were quite clearly wholly wrong in reaching a decision which was simply not, as a matter of logic and elementary fairness, open to them? That was (to use legal language) perverse? That was one which was beyond all reason and showed that they were departing from logic and probably misdirecting themselves in some way?

    We have considered that as carefully as we can and we simply cannot say anything of the sort. It is, of course, hypothetically possible that a different Tribunal might have taken a different view; or that different Post Office officials might have taken a different view of what had happened. It is perfectly possible to assert, though we are certainly not going to say that this is the true position, that Mr Nicolson had had a very fair run for his money and been treated with an extraordinary degree of tolerance, after showing a very bad record for such a young man. Again, that is merely a possible view. The Tribunal do not say that. They merely say, which is really all they are bound to say, that they think the employers acted reasonably and took a decision which was within the range of decisions of an employer acting fairly and properly. We cannot criticise their decision.

    We can find no error of law here. In those circumstances, since we are only allowed to consider points of law and have no jurisdiction at all over questions of fact, we have to say that the appeal fails and must be dismissed.

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