Appeal No. EAT/47/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17th June 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MISS J W COLLERSON

	MS D WARWICK

INCO ALLOYS LTD	APPELLANTS

MR R KELLY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A J GLOVER
Solicitor
Inco Alloys Limited
Holmer Road
Hereford
HR4 9SL

For the Respondent	MR N J IRELAND
(Consultant)
Unit 3
Archfield Court
Cotham
Bristol, BS6 6BX

	HIS HONOUR JUDGE LEVY QC:  After 17 years of service with Inco Alloys Limited ("the Appellant"), Mr Raymond John James Kelly was dismissed from his employment on 15th April 1993.  This was because of two incidents which had occurred on the 4th February 1992 and the 15th July 1992.  Let me briefly describe what those incidents were.

	On the 4th February Mr Kelly was absent from work.  Having been absent from work for the day he went to the Territorial Army at 7.30 in the evening, did a stint there, and went to work the next day.

	On Wednesday 15th July 1992, after he had been off work on the Monday and Tuesday before, Mr Kelly went to the Territorial Army and then went on to a night-shift at the Company's premises.  Those two incidents occurred in 1992.

	Early in 1993 another employee of the Appellant was found to have gone to the Territorial Army on a day when he claimed sick pay from it.  That led to an inquiry by the Appellant as to who else had been going to the Territorial Army when they might, or might not have been, at work and this pointed the finger at, amongst others, Mr Kelly.  
	
	On 9th April 1993, Mr Kelly was called to a meeting.  We have a minute of that meeting (page 27 of the bundle), which was attended by Mr Brash, a union representative, and Mr Hunt and Mr Pearce for the Appellants.  The minute reads:
		"Mr Hunt outlined reason for interview - to find facts.

		Presented Mr Kelly with facts (attached)"

The attachment was the reference to Mr Kelly going to the TA between 1930-2130 on 5th February and 15th July 1992.
		"Mr Kelly said that the swollen ankle may have improved during the day - so able to go to TA.  Probably should not have gone, in the light of Lyndon Brooks' situation."

Mr Lyndon Brooks was the gentleman who was dismissed in January 1993 and it is submitted on behalf of the employer that that was an admission of gross misconduct by Mr Kelly.

	The minute goes on:
		"2nd occasion went to TA and came in on night shift - not denied.

		Mr Hunt asked Mr Brash if he had any comments.  Mr Brash said that if Mr Kelly was attending lectures then there was no problem.

		Mr Hunt asked Mr Kelly if there was any walking.  Mr Kelly replied there was.

		Mr Hunt asked if there was anything to add and said he would check the dates.

		Mr Kelly said that the dates given by the TA were probably correct.  Nothing further to add.

		Meeting adjourned to consider facts and further investigation."

	A disciplinary meeting was held on the 15th April 1993 when Mr Causon, Mr Pearce and Mr Hunt were there for the Appellants and Mr Kelly was again assisted by Mr Brash.  The minutes of that meeting read as follows:
		"Mr Causon outlined the details of the meeting held on Friday 9th April 1993.  He stated that this was a disciplinary interview and asked Mr Kelly to give the facts as he understood them.

		Mr Kelly replied that in July he had pains in his chest and consulted his GP.  His GP then informed him to give it until Wednesday and see how he felt.  Mr Kelly said that by Wednesday midday he felt fine and went to TA that evening and then to work that night.

		Mr Kelly said with reference to the February occasion that he had talked with his wife and they thought that he had been playing football with the children and twisted his ankle.  He phoned in on the Wednesday morning and as the day progressed the swelling went down.  He said he attended TA that evening but was not sure if he or his wife had driven.

		Mr Causon then outlined the Company Sick Pay Rules and that employees should not participate in any activity which may jeopardise recovery.  Also Mr Causon noted Mr Kelly's high sickness rate on Monday's as opposed to Fridays.  Mr Causon asked Mr Kelly if he accepted that he had been in receipt of Company Sick Pay and that he had jeopardised his recovery.  Mr Kelly said that he accepted this.

		Mr Brash commented that he did not see a major problem in that Mr Kelly had not attended TA when he should have been at work.  He had returned to work either that night or the next day.

		Meeting adjourned.

		Mr Causon again reviewed Mr Kelly's sickness/absence record and stated that it was not good.  Mr Kelly was almost twice as likely to have a Monday off as a Friday.  One occasion Mr Kelly had sought TA medical advice.

		In both incidents put to Mr Kelly he had been in receipt of Company Sick Pay and had taken part in activities that may jeopardise his recovery.  The result of this would be dismissal with immediate effect.

		Mr Causon informed Mr Kelly of his right to appeal."

The appeal took place on the 5th May 1993 when there were two representatives of the Union present but not Mr Kelly and the minutes show that Mr Kelly did not wish to attend.  The paragraph of the minutes which deal with the hearing (at p.31 at the foot of our bundle):
		"Mr Nairn then informed the representatives that he had prepared for the meeting by reading the notes of the earlier disciplinary hearings between the Company and Mr Kelly in respect of his claim for Company sick pay on a day when he attended for military training.  He had also discussed the matter with those present at these meetings and Mr Kelly's manager.  Mr Nairn then outlined the case as he understood it to the Union representatives highlighting the main issue of whether it was credible that a person could be unfit for work with his employer but on the same day be fit for more demanding military training.  Mr Nairn also invited the representatives to comment on the absence pattern of Mr Kelly which was heavily slanted towards absences on Mondays and Tuesday.  He informed the representatives that Mr Pearce, one of Mr Kelly's managers, had informally warned him that he was frequently absent sick from work on Mondays following weekend TA training.

		The representatives stated that they did not dispute any of the facts put before them by the Company nor did they condone what Mr Kelly had done.  However, they were appealing on his behalf solely on the basis that the penalty was too severe in the light of Mr Kelly's service and family circumstances."

As I have said Mr Kelly was dismissed.  On 19th May he submitted an Originating Application claiming wrongful dismissal.  A Notice of Appearance was sent by the Appellants on 8th June 1993.  The first two paragraphs of it read:
		Neither at the meeting prior to the applicant's dismissal nor at the appeal hearing on 5th May 1993 was there any dispute regarding the facts i.e. that the applicant had claimed Company sick pay on a day (5th February 1992) on which he attended the TA for military training.

		The Company regards such conduct as an abuse of the Company's sick pay scheme and hence as gross misconduct justifying dismissal."

Before moving on to anything the Industrial Tribunal said or did, we just make the point and say that the Industrial Tribunal found that in fact Mr Kelly was dismissed because he had gone to the TA on each of the two days.

	It is perhaps desirable before going on to the reasons for the decision below to refer to the Appellants' Disciplinary Code, which were issued in 1992.  The date on them is February 1992, very shortly before the date of one of the occasions on which the Appellants relied.  Part B of the Code at page 12 is headed:
		"DISCIPLINARY CODE

		1.	OFFENCES RESULTING IN DISCIPLINARY ACTION

		(a)	Offences other than Gross Misconduct

		. . . .

		(b)	Gross Misconduct

			Under this heading the most serious offences are grouped, and any employee found guilty of gross misconduct will normally be dismissed without warning or notice.  The following are examples of gross misconduct"

and the penultimate of seven matters listed are:
		"-	abuse of company sick pay scheme"

at page 25 of the "Company Rules, Disciplinary Code, Sick Pay Procedure & Code of Conduct", we find this:
		"SICKNESS ABSENCE - CODE OF CONDUCT

		To qualify for sick pay employees must observe the following code of conduct when absent due to illness. . . .

		6.	Not participate, while absent, in any activity which will jeopardise recovery and behave in a manner consistent with the reasons for absence.  Employees are reminded that a false claim for Company Sick Pay will lead to dismissal."

There is no suggestion here that Mr Kelly,  unlike Mr Lyndon Brooks made a false claim for sick pay which led to his dismissal;  what was alleged here was that he was in breach of Rule 6. to "not participate, while absent, in any activity which will jeopardise recovery".

	There was a hearing before the Industrial Tribunal on 9th November 1993 when the unanimous decision of the Tribunal was that the Applicant was unfairly dismissed.  It was held he was entitled to a basic award and to a compensatory award and the Recoupment Regulations applied.  The decision was communicated to the parties on 2nd December 1993. An appeal by the Company was lodged on 10th January 1994.

	The Notice of Appeal lists three major errors alleged by the Tribunal below, which have been developed in his argument on behalf of the Appellant by Mr Glover.  The grounds of appeal are that the Industrial Tribunal:
		"(A)		made findings of fact unsupported by the evidence.

		 (B)		misinterpreted the company's Sickness Absence Code of Conduct.

		 (C)		wrongly concluded that the company's investigation was insufficient."

We have been taken in some detail through the findings of fact by Mr Glover both in his address to us and in his skeleton argument but we are unable to find any findings of fact made by the Tribunal which were unsupported by evidence.  All the matters on which Mr Glover has addressed us seem to be matters of fact on which there was evidence below which the Tribunal could find the facts which they did find and we find there is nothing in that allegation on this appeal.

	The second of the items is the misinterpretation of the Code.  In that respect we should set out what the Tribunal said about the Code.  We pick up the Reasons at paragraph 12 where the Tribunal first deal with the incident on the 15th July:
		"We can only conclude that someone had advised Mr Causon and possibly Mr Nairn that it was not politic to rely on 15 July."

That is because in the Notice of Appearance only the 15th July is mentioned as an incident relied on.
		"Nor do we think it was.  No-one has suggested that the applicant was behaving improperly in taking sick leave.  He did so on the express advice of his doctor, Dr Henderson, who told him to see how he felt and to go back on Wednesday night if he was well enough.  That is what he did.  Why then was he foolhardy in going to the TA immediately before?  Mr Causon said that it was a breach of rule 6.  We do not see how it can possibly have been that.  The rule forbids him to participate `While absent in any activity which will jeopardise recovery.'  In our view he was not absent from work at the time when he was not duty bound to be there.  His shift did not begin until 12 midnight.  Nor could any sensible person believe that he was jeopardising his recovery (which by then he believed to be complete) by going to TA.  Mr Kelly was criticised for not telling them that he was only attending lectures."

That is dealing with other matters but not on the construction of the rule.  We continue further down in the same paragraph to the matters of the earlier absence:
		"in the letter of 7th March, the commanding officer recorded that they had been engaged on evening light duties.  That would not be bridge building.  That would not be square-bashing. We think that the reasoning behind Mr Causon's decision was quite clear.  When recalled he told us that applicant had attended TA on the Wednesday and claimed sick pay for that day.  That in our view was the reason for Mr Causon's decision at least in relation to 15 July.  In our view he is imposing a criterion which does not appear in rule 6.  Nor was there any or any sufficient enquiry as to what activity he had been doing at the TA which could possibly jeopardise his recovery.  There had been none.  It is wholly wrong to put the onus on Mr Kelly to explain what he had been doing (when he was not specifically asked).  Moreover we are convinced Mr Kelly is right when he says that all the questions were directed at the fact that he had been to the TA (and not what he was doing there).  It is quite clear to us that Mr Causon (and probably Mr Nairn) regarded the mere attendance at the TA on a date for which he was paid sick pay as a breach of the rule.  In our view it was not.

	13.	The matter is not as straightforward in relation to the 5 February because the company's case in relation to that was slightly different.  Mr Causon said that if the ankle had been twisted and swollen on the morning he could not possibly have recovered sufficiently to go to the TA that evening or to work the following morning;  but in the alternative if he was then he was in breach of rule 6 for going to the TA before work.  At the outset he seemed to be suggesting that a morning and afternoon were insufficient for recovery.  He overlooked the fact, however, that the injury had been sustained 24 hours before Mr Kelly went to the TA.  Given that this was ancient history;  that non-one saw the injury;  no-one had more than the applicant's account and the sick pay form;  how could they possibly conclude that he did not have an injury for which one day's absence was appropriate?  The argument appears to have been that a twisted and swollen ankle must take 6 weeks for recovery.  We agree with Mr Ireland. [who appeared before us as he did below for the employee] There are degrees of injury.  There are sporting injuries which disable for minutes or hours.  Any reasonable employer would realise that a       swelling can go down in 24 hours.  Moreover we do not understand why it was thought that mere attendance at a TA lecture or a TA session about which they knew nothing should jeopardise recovery."

It is in that context that it is said that the Industrial Tribunal narrowly interpreted the Company's Rules.  We do not think there is any such narrow interpretation. As we understood the submission made to us this morning, which he had also made to the Industrial Tribunal, based on Clause 6, 6 of the Company's Rules, they were that "any activity which will jeopardise recovery" meant that simply that going to the Territorial Army for an evening itself was something on which the onus rested on the employee to explain and excuse his attendance.  If he had taken the day off work because he was ill because TA activities could include manual work like building bridges, that would jeopardise recovery. Simply going to the TA prima facie was a breach of the rules.  Bearing in mind the gross misconduct provision to which we have alluded, we cannot for the life of us see that the onus is on the employee as Mr Glover suggested and we think that this was a misconceived point.

	The final point, which was raised in the Notice of Appeal and developed in the submissions before us today, was that the Industrial Tribunal wrongly concluded that the Company's investigation was insufficient.  We have already in this judgment set out the minutes of the Company's investigations.  What is said is that there were admissions by Mr Kelly that he had been acting in breach of the Company's Code and that thus, as in the case of Royal Society for the Protection of Birds v. Croucher [1984] ICR 604, the employers were entitled to act as they did because there had been an admission of misconduct in the rules.  We remind ourselves the Royal Society for the Protection of Birds was a case where an employee in a position of trust admitted dishonesty.  What happened here, on the facts of this case were very different than a dishonest application of monies by a company's employee, but in any event we do not think that on any proper construction or consideration of the documents there was any admission on any of the occasions on which Mr Glover relied.  We have set out the minutes of the meeting.  So far as the 9th April is concerned all that Mr Kelly said as recorded is:
		"Probably should not have gone, in the light of Lyndon Brooks' situation."

That is obviously looking with hindsight what was then known to be in 1993, after Mr Brooks had been dismissed, of the Company's policy when people went to the TA during work hours. Although an employee might be in difficulties if he went to the TA after claiming a day's absence from work in a time it is not an admission in our judgment of misconduct, nor could any reasonable employer so have considered it.

	Secondly, so far as concerns the meeting on the 15th April, what is said is:
		"Mr Kelly said that he accepted this."

In answer to a question:
		"RDC asked RJK if he accepted that he had been in receipt of Company Sick Pay and that he had jeopardised his recovery."

What Mr Kelly seems to have been accepting was the Company's sick pay rules as outlined by Mr Causon, which may have had the restrictive interpretation which the Company thought was right. But this did not look into the Code as any reasonable employer might have done, indeed as any reasonable employee looking at the rules for the first time, might have done. We do not think this was any admission by Mr Kelly in the sense that there was an admission of dishonesty by the employee in the Royal Society for the Protection of Birds case.

	Finally, in the appeal meeting of the 5th May 1993, what the representative said was:
		"they did not dispute any of the facts put before them by the Company nor did they condone what Mr Kelly had done."

We do not think those words can on any proper interpretation amount to an admission that there was dishonesty or misconduct by the employee which merited the penalty which Mr Kelly was asked to pay.

	Mr Glover has referred us to the authority of Dick & Another v. Glasgow University [1993] IRLR 581 and submitted, that the Tribunal should not substitute its own views for those of an employer who carried out the investigation.  We accept the proposition that it is not an objective test which has to be made but the test which the employer is entitled to make on the known facts; however we do not think that any employer on the facts then known to it at the time could possibly have concluded that Mr Kelly was guilty of gross misconduct we do not think that the criticism of the Industrial Tribunal or the facts which they found can be criticised.  

	We turn to paragraph 14 of the decision:
		"In our view at the time the decision was taken there was insufficient enquiry.  There should have been specific reference to what the applicant had actually done at the TA session.  There was none.  That in our view was because Mr Causon formed the view that it was gross misconduct simply to attend a TA session on a day for which sickness payment had been claimed even if the hours of attendance were different from those from normal work.  That in our view is wholly unreasonable.  Moreover it is a misinterpretation of the rule book.  He had no reasonable grounds for supposing that Mr Kelly had been shamming.  There were grounds on which could have concluded in the alternative, that while absent Mr Kelly had jeopardised his recovery.  On 5 February he did nothing to delay his return to work.  He returned the following day.  On 15 July he had recovered.  It is wholly artificial to suppose that he was unfit for work at 9.30 pm recovered by 12.00 midnight and that attending a TA session at 9.30 could jeopardise his return to work.

		15.  These defects were not cured on appeal for reasons which were wholly understandable.  Mr Kelly was too sickened to put in a personal appearance.  His representatives made a plea for clemency.  We have not heard them but no doubt they had good and sensible reasons for not inviting their employers to find that the company had wrong-headed opinions.  We conclude that the applicant was unfairly dismissed.  He however was blameless.  He did not contribute by his conduct to the dismissal."

We think that that is a conclusion on the facts on the evidence which they heard to which the Industrial Tribunal was entitled to come.  We would make one reference to the sentence which I have just read out which commences  "We have not heard them but no doubt . . . ." Mr Ireland has submitted to us that is an expression of opinion which is not a necessary part of the reasoning of the Industrial Tribunal;  he says that it is a comment and the judgment is complete without it.  We accept such a submission and we do not think that by virtue of putting that paragraph in the judgment, the Full Reasons are flawed in a way Mr Glover suggested they were.

	In the circumstances of this case, therefore, and on the facts as we see them, we dismiss the appeal.