Appeal No. EAT/565/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28th January 1994

	Before

	THE HONOURABLE MR JUSTICE TUDOR EVANS

	MR P DAWSON OBE

	MR J H GALBRAITH CB

THE POST OFFICE	APPELLANTS

S NORISH	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D GRIFFITH-JONES
(Of Counsel)
The Solicitor
Legal Department
Impact House
2 Edridge Road
Croydon
CR9 1PJ

For the Respondent	MISS L CHUDLEIGH
(Of Counsel)
Messrs Nash
Beaumont House
Beaumont Park
Plymouth
Devon
PL4 9BD

	MR JUSTICE TUDOR EVANS:  This is an appeal by the Post Office who employed Mr Norish, the Respondent, as a Postman,  against the unanimous decision of an Industrial Tribunal sitting at Plymouth on 10th July 1992 in which it was held that the Appellants had unfairly dismissed the Respondent.  The Tribunal made an order for re-instatement with consequential restoration of pension rights and financial recompense.

	Mr Norish began work for the Appellants as a Postman in 1986.  He was dismissed on the 20th February 1992 by a formal letter of dismissal.  The relevant procedure for warnings having been gone through by the Appellant.  

	The reason alleged related to the Respondent's capacity within Section 57(1)(a) of the Employment Protection (Consolidation) Act 1978.  The essential case for the Appellant was that the dismissal was reasonable because of the Respondent's irregular attendance over a number of years and that the Appellant had gone through the procedures which they had set themselves before they could dismiss one of their employees on that ground.

	In their findings of fact the Tribunal make a large number of detailed findings and review of the evidence of the Respondent's absences from work for sickness, year by year, until his dismissal.  It is necessary for us to review as succinctly as we can the effect of the findings.  First, there was no absence from work in 1986.  But from July 1987 until the end of that year there were 5 days off, 3 of which were for stomach trouble.

	In 1988 the Respondent was interviewed and given an informal oral warning because of the absences in 1987 and for four days off for stomach trouble and one for some other condition in 1988.  The Tribunal found that there were further absences after the warning of 1988.  He was absent from work on six occasions, after the warning.  On the 23rd November 1988 the Respondent was given a formal written warning.  The number of absences allowed for the Respondent, having regard to his age and his position, were two absences in twelve months and the Respondent had had seven absences, totalling 11 days.

	In paragraph 7 of the decision, the Industrial Tribunal point out that the Appellants were understandably concerned about regular attendance and looked carefully at anyone who was regularly absent from work for whatever reason.  That was, in fact, an acceptance that the procedures adopted by the Appellants in a case such as this were reasonable.

	In 1988 there were a number of absences;  there were three up to March.  Then there were seven days of absence for stomach trouble, followed in April by two days of absence for irritable bowel.  Then one absence in September and one in November followed by three in December.

	On the 1st February 1990, there was a formal interview with the Respondent and a formal warning was given to him because of the absences.  Just before that, on the 29th January 1990, the nurse employed by the Appellants at the relevant place of work of the Respondent, had expressed optimism about the future of the Respondent from a medical point of view.  She said many of his previous absences were due to bowel condition and she thought that he was improving.  It is clear from the summary made of the findings that a number of them were attributable to bowel trouble.

	In September 1990 the Respondent underwent an appendicectomy and was away from work, I think it is right to say, altogether for 25 days.  

	There was one more day off in November 1990 and four days away from work in February 1991.  The result was that on the 25th March 1991 there was a formal interview of the Respondent.

	In July 1991 he was away from work for 7 days.  For one day in September and two days in November 1991.  These matters were not related to bowel trouble.

	In January 1992, there were two days off and on the 17th February 1992 he had an interview with Mr Baldry and, as a result, it was concluded that there might be grounds for dismissal.  As I indicated earlier, on the 20th February 1992 there was a formal letter of dismissal.

	The Respondent appealed under the relevant appeal procedure and Mr Fitzpatrick, the Appeal Manager, after considering the grounds advanced by the Respondent, dismissed the appeal.  That procedure was carried out without hearing any evidence as we understand it.  It was a paper exercise.

	On that outline of the facts, the Industrial Tribunal held that, judged by absences over the last twelve months, the absences were not so serious as to warrant dismissal.  But it was said that the reason given had to be judged in the context of past absences.  They observed in paragraph 28:
"Any employer who has so unreliable an employee that he simply cannot carry on his business properly is entitled to dismiss but was Mr Norish in this category?

They then concluded that he was not.  

	In paragraph 34 the Tribunal held:
"Looking at the matter overall, in our judgment, his record does not display such a serious case of irregular attendance as to warrant dismissal, without further medical investigation."

	In paragraph 36 it was stated:

"Mr Norish [the Respondent] was never examined in any detail by the Medical Advisers, as we understand it.  He had a conversation with the Nurse, but there appears to be no detailed medical consideration of his state.  That could have been obtained after examination by his GP with a full report on his prospects. ."

	As we have said, this is a case in which the employer had a set procedure for dealing with cases such as this and in paragraph 7 the Industrial Tribunal appears to have accepted that the procedure was a proper one.

	The first ground of appeal raised by Mr Griffith-Jones, on behalf of the Appellants, is that the Industrial Tribunal substituted its own view for that of the Appellant as to whether the Respondent's attendances was so irregular as to warrant dismissal.

	We think it is common ground, but if it is not it is the view of each one of us, that nowhere in the decision does the Tribunal set out the language of Section 57(3).  That, of course, is in no sense obligatory providing that there is either some direct indication of the appropriate test, that is to say, whether the dismissal was within the band of reasonable responses or the application of the correct test can be reasonably inferred from the contents of the decision.

	Miss Chudleigh, on behalf of the Respondent, has reminded us that it is wrong to analyse a decision in minute detail.  She has referred to the judgment of the Court of Appeal in Piggott Brothers & Co Ltd v. Jackson & Others [1991] IRLR 309.  It is unnecessary for us to refer to the facts of that case because Miss Chudleigh relies upon it for one passage in the judgment of Lord Denning MR where he said:
"It is at this point that I think we are being invited to fall into another trap for unwary appellate courts, namely to construe an industrial tribunal's reasons as if they were a statute or indeed, as I have put it in UCATT v. Brain [1981] IRLR 225 at p.228.

`[The purpose of reasons] is to tell the parties in broad terms why they lose or, as the case may be, win.  I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.  This, to my mind, is to misuse the purpose for which reasons are given.'"

Lord Denning MR had made the same point in Retarded Children's Aid Society

Miss Chudleigh submits that when the section is looked at as a whole and read broadly, which is the proper approach, the Tribunal did not substitute its own view for that of the Appellant, as to whether the Respondent's attendance was so irregular as to warrant dismissal.  

	We have, therefore, to look at the relevant paragraphs.  In paragraph 26 the Tribunal said this:
"We have to decide whether his attendance really was so irregular as to warrant such action:  Looking back over the last 12 months, there were 6 occasions when he was off sick - a total of 17 days, but 13 of those were as a result of `flu' or chest infections, the remaining 4 were for diahorrea upsets and the knee injury."

	Mr Griffith-Jones submitted to us and we entirely agree with him that that looks very much the language of the Tribunal substituting its own views.

	Miss Chudleigh submitted, not in these precise words but this is the effect of it, that such a view is avoided by the concluding sentence of paragraph 26 as follows:  was this so serious as to warrant dismissal on grounds of "lack of capability?"  Looked at in isolation, it may be that that is a correct statement but then, in paragraph 27 answering the question, the Tribunal held:
"We must say we do not think so:  In our judgment, it was not sufficiently serious ground as to warrant dismissal."

In paragraph 28 the Tribunal stated:
"That of course is not the end of the story because the decision has to be viewed in the context of the past absences.  Any employer who has so unreliable an employee that he simply cannot carry on his business properly is entitled to dismiss but was Mr Norish in this category?"

Mr Griffith-Jones submitted, and we accept the submission, that this means that the Tribunal are asking the question "were, in our view, the absences of the Respondent so serious that we think that they fell into the category that the Appellant could not carry on its business".

	In respect of the paragraphs to which we have referred, Miss Chudleigh has submitted that the Tribunal were not in any way substituting its view and she strongly relies on paragraph 32 where it is said:
"Going back to the last 12 months which were rather more relevant, 13 days out of 17 were for `flu' and chest infections with 4 odd isolated incidents.  Could they [that is the Appellants] conclude that he was unreliable on that basis?"

	We agree that looked at in isolation that might be considered to be a correct statement of the test but, in our opinion, looking at the whole of this decision, we have come to the conclusion that the first ground of appeal is made out.  Quite apart from the matters to which we have referred which lead us to that conclusion in paragraph 34 it is stated:
"Looking at the matter overall, in our judgment, his record does not display such a serious case of irregular attendance as to warrant dismissal, without further medical investigation."

The last four words form the subject matter of the second ground of appeal to which we shall come in a moment, but it seems to us that paragraph 34, in the clearest terms, is expressing the Tribunal's view and not applying the correct test.

	That conclusion is sufficient for us to dispose of the appeal but it is important for us to consider the second ground which is advanced.

	The second ground of appeal is that the Industrial Tribunal erred in law and came to a perverse conclusion in deciding that the Respondents' ground did not warrant dismissal without further medical evidence.

	Mr Griffith-Jones has submitted to us that looking at the whole case there was no medical issue to be resolved.  On the facts a medical investigation had been carried out and that showed that there was no medical problem after the appendicectomy in 1990 and, indeed, the Respondent accepted that.  He, in fact, was saying when he was seen that there was no medical problem and that he was fit to return to work.

	Miss Chudleigh has not accepted that submission and she particularly relied upon the appellate exercise carried out by Mr Fitzpatrick.  She submitted that he reached conclusions without the benefit of medical evidence and that that is a matter which properly falls within the conclusion expressed in paragraph 34, that is to say, that the record does not justify dismissal without further medical evidence.  The way in which Miss Chudleigh put this part of the case was that, in effect, Mr Fitzpatrick concluded that the behaviour of the Respondent came close to malingering, and that he concluded that the Respondent was fit enough for work.  In particular she referred to paragraphs 5 and 6 of "Conclusion" in the written appeal against dismissal, in the first of which Mr Fitzpatrick, having set out the matters relating to a dental abscess and trouble with his knee, said:
"I find it equally hard to believe that a knee injury with no indication of its cause would be so painful that it made walking impossible and yet 2 days later delivering mail created no problems.  Such absences lead me to conclude that Mr Norish does not attend for work unless he feels 100% fit."

and then in paragraph 6:
"He [Mr Norish] also said that he intended, given the chance, to work the next 12 months and thereafter without any sick absence.  If he can assure me of this now, there is no reason why he could not have kept a clear record before.  It confirms my view that whilst he may have felt somewhat under the weather on many occasions, he was fit enough to attend for work."

Having considered what Mr Fitzpatrick concluded, we must reject the suggestion that he was coming to the conclusion that the Respondent was, or was approaching, the state of mind of a malingerer. We have looked anxiously at the appeal paper to see whether a medical judgment was being reached without the benefit of medical evidence and we feel bound to say that our unhesitating conclusion is that Mr Fitzpatrick was not expressing a medical judgment.  He was simply saying that a more robust person than the Respondent would have found it possible to go to work with the medical and dental problems that the Respondent had.  
	In our view, the conclusion reached in paragraph 4 was that the record did not justify dismissal without further medical investigation and that that conclusion was one which was not justified.  Mr Griffith-Jones has submitted it is a perverse conclusion because, as we have said, there was no unresolved medical issue and we have indicated the matters he relies on correctly, in our view, leading to that submission.

	The last matter we have to consider relates to paragraph 28 of the Decision, that is to say, the passage in which the Tribunal stated:
"Any employer who has so unreliable an employee that he simply cannot carry on his business properly is entitled to dismiss but was Mr Norish in this category?"

Counsel submitted that that is an incorrect statement of the law and we feel bound to say that that submission is irresistible.  That was not a correct statement of the law and, in our view, it forms a basis of the decision.

	It must follow for the reasons we have given that this appeal must be allowed.  Miss Chudleigh fought very ably if we may say so, to sustain this decision but we are obliged to say that, having given careful attention to all her arguments, we find her efforts to be unavailing.

	There are three questions in this case, the first of which was:  What was the reason for the dismissal?   Secondly:  What are the facts to be found on the evidence?  Thirdly:  Was the employer's response to those facts, when dismissing the employee, within the band of reasonable responses?  Those are the questions which have to be answered in this case.

	We have considered, very carefully, the present applications following our allowing this appeal.  We recognise that there is force in the submissions of Mr Griffith-Jones but on balance we think that this case should go back for a fresh hearing de novo by a new industrial tribunal.