Larkham v Downeys Cars Ltd  (Unfair Dismissal & Breach of Contract)  (18/19 November 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	1530/02

APPLICANT:		Gary Larkham

RESPONDENT:		Downeys Cars Limited

DECISION

The unanimous decision of the Tribunal is that the applicant had not been unfairly dismissed and that the breach of contract had been satisfied prior to the hearing.  
Appearances:
The applicant was represented by Mr W Smith.
The respondent was represented by Mr Downey.

The tribunal’s reasons are given in extended form.

1.	The applicant had been employed as a Car Valet from August 1995 to 22 May 2002.  On Friday 9 November 2001 an incident occurred with his Line Manager, Mr Norbet Henriette.  The applicant had been requested by a Maurice Dowds to have a car prepared by 5 pm that evening.  The applicant asked for help from an Apprentice who declined saying that he was too busy, so the applicant spoke to Mr Henriette and told him that he may not get the car finished that day.  That led to a confrontation between them with each shouting at the other, this dispute continued for some time and culminated in the applicant giving his keys to Mr Henriette and saying, I resign and left.  The applicant says he felt humiliated at being shouted in front of his colleagues.  

2.	Mr Downey had been on holidays and returned on Monday 12 November and was told that the applicant had resigned and given in his keys.  

3.	Subsequently on 13 November 2001 a self-certified medical certificate was received from the applicant.  Mr Downey wrote to him on the 19th expressing surprise as he understood he had resigned.  He sought confirmation that the applicant wished to continue with his employment and advised him that a Doctor’s certificate was now required.  

4.	The applicant replied on 20 November to the effect that he had not resigned and that he was ill and a Doctor’s certificate would be sent shortly.  He indicated in that letter that he wished to raise a grievance regarding the incident on 9 November and sought copies of the respondent’s grievance procedures.  

5.	Mr Downey responded on 23 November and sent copies of the grievance procedures together with a copy of the respondent’s sickness procedures and referred in particular to those parts which covered long-term absence.  

6.	The applicant sought clarification on the procedures which provided that at Stage 1 he should take the matter up with his Line Manager, as Mr Henriette was his Line Manager this would not be possible.  Mr Downey replied that any issue which could not be resolved by the Line Manager would be dealt with by him as he had done in the past.  

7.	A meeting was held on 7 December to discuss the grievance of the applicant.  A colleague attended with him and Mr Downey and Valerie Clegg were present.  The applicant told what had happened on 7 November and the meeting concluded with Mr Downey informing the applicant that he would speak to Mr Henriette.  It would appear that Mr Henriette attempted on the 7th to have the matter put to rest but the applicant was not prepared to do so as he stated he had been embarrassed in front of his work colleagues.  

Following that meeting, Mr Downey spoke to Mr Henriette who confirmed the incident had happened.  Mr Downey was satisfied that both parties behaved out of character and asked for the incident to be put behind them.  He also confirmed that the respondent was willing to accept that the applicant had changed his mind about resigning and he hoped the applicant had speedy recovery and return to work.

8.	The applicant indicated that he was unhappy with Mr Downey’s decision on his grievance and wished to move to the next stage in the complaints procedure.  Mr Downey’s response was that there were no further procedures and that in accordance with Stage 3 he would record a ‘failure to agree’.

Mr Downey’s reply to the applicant was that because the respondents were a small company there were not the layers of management to enable the various stages to be followed, as his Line Manager was Mr Henriette, against whom the complaint was made, Stage 1 was inappropriate and as Managing Director dealing with the matter meant that it had gone to Stage 3 and a decision made by him was final.  

9.	Stage 4 of the Company Grievance Procedure provided ‘in such circumstances, the services of the Labour Relations Agency or an agreed independent person may be enlisted to act as conciliator’.

The applicant offered Mr Smith, his representative, as a person who could reach a resolution with the company.  

At this suggestion Mr Downey sought the advice of the LRA and then sought information on the qualifications of Mr Smith to act in that role.  At this stage Mr Downey wrote to the applicant saying that he considered he was behaving in an unreasonable manner and that it was not uncommon for workers to have words.  He had listened to both sides and had taken disciplinary action against Mr Henriette, who was given some form of warning.  

10.	The applicant in receipt of this letter indicated he was moving to the next stage and had contacted the Labour Relations Agency and had arranged a meeting with them on 1 February 2002 and indicated that the LRA would be in contact with Mr Downey.  The applicant, following the meeting with the LRA, reiterated his request to move to Stage 4.

Mr Downey’s response was that he had continually asked the applicant what he wanted the company to do in respect of his grievance.  He had heard both sides and had disciplined Mr Henriette and there appeared to be nothing further that could be done.  His evidence was that the LRA advised him that their company was too small for them to appoint a conciliator and that the matter should be resolved internally.  

11.	The applicant was still not satisfied and Mr Downey replied on 18 February that details of the disciplinary action taken against Mr Henriette were confidential, but he confirmed he had been disciplined and assured the applicant that it would never happen again.  Mr Downey considered the grievance should be brought to a conclusion and indicated if the applicant was not prepared to accept his solution, the company would have no other option but to review his future with the company.  

12.	By February 2002 the applicant had been on sick leave for four months during which time his medical certificates recorded stress as a reason for his absence.  

There was a difference of opinion between the parties as to whether the applicant’s health had been taken into consideration at the grievance stage.  Mr Downey stated in the letter of 26 February that the question of the applicant’s health had been an issue before his grievance but that the two matters were separate and the health matter would run its course with the company complying with its sickness procedures.

13.	There was no further correspondence between the parties until 19 April 2002 when on receipt of a further medical certificate from the applicant, Mr Downey wrote to him seeking his consent to obtaining medical reports from his Doctor.  He enclosed with that letter a consent form, summary of the applicant’s rights and a copy of the Labour Relations guidance note, Number 16.  This guidance note set out in detail the provisions of the Access to Personal Files and Medical Reports (Northern Ireland) Order 1991.  A period of 21 days is referred to in the Access provision.  This date is deemed to commence on the date of the application for the medical reports.  

The applicant responded on 20 April refusing permission to contact his Doctor for medical information.  In reply Mr Downey said they were unable to assess his position and as he had been absent for 6 months he asked the applicant to attend a meeting on 14 May 2002.  

14.	The meeting on 14 May 2002 was attended by Mr Downey, Ian McCulla, Roselyn Downey and the applicant..  The applicant had been informed that he could attend with a colleague but attended on his own.  His consent was sought once again for permission to get medical reports from his Doctor.  The applicant agreed that he would ask his Doctor to release the necessary records.  In the minutes of that meeting it is recorded that Mr Downey said he would allow a timescale of six days up to 21 May to have the medical records produced.  The words ‘extend deadline to’ were inserted although it is not clear when these words were added.  The applicant’s evidence was that Mr Downey had agreed to wait until he received the medical reports whereas Mr Downey was fairly clear that he was extending the 21 day period from the date of his first application for the records, ie 19 April 2002.

The medical reports were not received by 21 May and on 22 May, Mr Downey wrote to the applicant saying that his position could not longer be held open and sadly due to his illness situation his employment was being terminated.  He indicated to the applicant that should his position change and he become fit for work they could have further discussions on the possibility of a return to Downey.

15.	Subsequently the respondent in August sent to the applicant a sum of money in payment of notice payments and his holiday pay.  

16.	The applicant’s complaints were unfair dismissal, breach of contract and constructive dismissal.  The question of constructive dismissal did not arise as it was agreed the respondent had dismissed the applicant.

At the date of the Originating Application there were outstanding monies but these payments were made in August and therefore at the date of the hearing there was no outstanding breach of contract.

The questions to be determined by the tribunal were:-

(i)	What was the reason for the dismissal?

(ii)	Did the employer act reasonably in treating it as a sufficient reason for dismissing the employee?

17.	Mr Smith contended that the whole grievance process and the ill-health issues had been entwined and the principle reason for dismissal had to be related to both.

18.	During the grievance correspondence and the meetings, Mr Downey on several occasions asked the applicant what more he wanted them to do but the applicant said this was not a matter for him.  Mr Downey offered a change in working practices, flexi-hours, alternative shift work in order to encourage the applicant to return to work, but it was clear that the applicant was not prepared to work with Mr Henriette, notwithstanding that his evidence was that he did not come into contact on a regular basis with Mr Henriette at work.

19.	The tribunal were satisifed that the respondent had shown that the reason for the dismissal was the long-term absence of the applicant on grounds of ill-health.

20.	The tribunal then considered whether the respondent had acted reasonably in treating it as a sufficient reason for dismissing the employee.  The tribunal were of the unanimous opinion that up to the meeting of 14 May the respondents had done all that a reasonable employer could do.  They had waited five months before requesting permission to get medical reports from his Doctor and this formal request was refused by the applicant.  However the tribunal did note that at an earlier stage the applicant had said he would be willing to attend an Independent Doctor and when asked why he had not acted at that time, Mr Downey said that he had no knowledge of what the applicant’s state of health was other than he was suffering from stress and to enable him to send the applicant to an Independent Doctor he would have had required to have the applicant’s medical records to satisfy himself that it was necessary.  

The tribunal then considered whether the timescale of six days was a reasonable time to allow for receipt of medical reports to be supplied.  Mr Downey considered he had followed the guidance from the Labour Relations Agency.  He had in compliance with the requirements of the 1991 Order sent the employee, at the time of the request for his consent, details of the applicant’s individual rights under the Order.  Under the Access provisions in the information note issued by the Labour Relations Agency the employee under the provisions of the Order has a right to communicate with his Doctor prior to the report being furnished to the employer and this right exists for 21 days.  Mr Downey considered that this 21 day period had expired by the time of the meeting on 14 May 2002 and that this was his explanation as to why the deadline was extended by six days.  The provisions of the Order is that an individual who is the subject of a medical report and who wants to have access to it before it is supplied to the employer has 21 days to communicate with the Doctor about arrangements for access.  This 21 day period commences on the date of the employer’s application for the report.  Mr Downey considered that time ran from 19 April 2002 when he first made application for the report.  Mr Smith submitted that the 21 days should have commenced from 14 May 2002 and therefore the failure to supply the medical reports by 21 May 2002 should not have been taken into consideration.  The tribunal do not consider the application of the 21 days covered the circumstances as applied in this case, however the tribunal consider that the respondents were acting in good faith in considering that there was a 21 day period applicable in this case.

The applicant’s evidence was that on leaving the meeting of 14 May 2002 he went to his Doctor’s but could not see a Doctor so he spoke to the Head Receptionist and he asked him to send the reports to his employer.  He accepts that the reports did not issue within the specified time and said that following his letter of dismissal he went to the Receptionist and told him not to send them as he had been dismissed.

The tribunal found it difficult to accept that a person, who was under threat of dismissal, if details of his ill-health were not made known to his employer, would not ensure that the reports were furnished or at least have advised the employer that he had done so, but there might be a delay.  

Perhaps with hindsight a slightly longer period of say 10 days might have been appropriate, but having regard to the applicant’s previous refusal it was not unreasonable for Mr Downey to put a shorter deadline as the applicant had been on sick leave for six months at this stage.  

The tribunal were of the opinion that even if a longer period had been specified it would not have made any difference.  The applicant in his evidence said that he had no idea how long it would be before he was fit to return to work.  In response to a query on this point he replied, “How long is a piece of string”.

The tribunal were of the opinion that if the applicant had wished to retain his option to return to work he would have urged his Doctor to supply the medical reports even if they were received late.  The tribunal were of the opinion that it was evident that the applicant had no intention of returning to work and therefore it was reasonable for Mr Downey to terminate his employment.

Chairman:

Date and place of hearing:		18 and 19 November 2002, Belfast

Date decision recorded in register and issued to parties: