Appeal No.	 EAT/26/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MR K M HACK JP
MR R JACKSON

MR A CRAIG	APPELLANT

THE POST OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	

APPEARANCES

For the Appellant	MR NIGEL GINNIFF
(of Counsel)
Messrs Aspinall Wright & Co
Solicitors
65 High Street
West Glossop
Derbyshire
SK13 8AZ	
For the Respondent	MR RICHARD PRATT
(of Counsel)
The Solicitor
The Post Office
Impact House
2 Edridge Road
Croydon
CR9 1PJ	

	JUDGE HICKS QC:   The appellant, Mr Alan Craig, was employed by the Post Office. His employment commenced in January 1987 and he remained in that employment until he was dismissed on 10th January 1996. An internal appeal against that dismissal was itself dismissed.

	The dismissal was connected with his attendance record, there having been a number of absences. There was an agreed procedure, under an agreement between the employers and the relevant trade union, dealing with disciplinary and dismissal action as a result of poor attendance records. That procedure was, as the Industrial Tribunal found, and as is not challenged on this appeal, meticulously followed in Mr Craig’s case. The various stages are recorded in the findings of the Industrial Tribunal. On 21st November 1994 there was an interview, as the result of Mr Craig’s record to that date, and he was given an informal warning. On 19th June 1995 there was a further interview as a result of further absences, and on that occasion he was given a formal warning which the tribunal found justified. On 10th January 1996, after further absences, there was a disciplinary interview and, as the Industrial Tribunal found, after  a proper investigation, he was on that date dismissed. Finally, as I have said, an internal appeal against that dismissal was rejected.

	Mr Craig applied to the Industrial Tribunal, his complaint being unfair dismissal. In the Notice of Appearance to that application the employers stated on page 1 that the reason for dismissal was misconduct, but in giving particulars at some length of the grounds for resisting the application the employers used expressions which indicated that the reason was one of capability, as the statute describes it, rather than of conduct, and indeed expressly stated when describing the dismissal that:

“... the Applicant’s employment with the Respondent was terminated on the ground of inefficiency arising from unsatisfactory attendance ...”

Very near the outset of the hearing before the Industrial Tribunal, therefore, the tribunal seems to have raised the question whether the employers justified the dismissal on the ground of conduct or capability, and the employers agreed that it was capability. It is said in the papers before us that the Notice of Appearance was amended accordingly. The copy we have is not formally amended, but it is quite clear that everyone understood that it was to be treated as amended, and that the ground for dismissal was one of capability.

	The Industrial Tribunal rejected the complaint. We have to consider three grounds for appeal set out in the Notice of Appeal and argued before us.

	The first is that the tribunal erred in law in rejecting, at the outset of the hearing before it, an application for an adjournment so that Mr Craig could obtain further medical evidence. The Chairman’s Notes as to that read as follows:

“The hearing commenced with an application made by the applicant for the case to be adjourned to allow him an opportunity to obtain his health records from his GP. The application was refused on the ground that the applicant had had every reasonable opportunity prior to the date of the hearing to obtain that documentation and the interests of justice dictated that the case should be heard to a conclusion on 19 July 1996.” [The date of the hearing.]

In order to justify our allowing the appeal on that ground the appellant must show that that decision, which Mr Ginniff on the appellant’s behalf accepts was a discretionary decision, was wrong in law and, it being a discretionary decision, that involves showing either that the tribunal took into account in reaching it some matter which it should not properly have taken into account - and that ground cannot be established because no argument has been advanced by Mr Ginniff that any matter which they took into account which was improper. They took into account both the interests of justice in matters proceeding rather than being put off, which was undoubtedly a proper matter to take into account and, on the other hand, the fact that the applicant had had every reasonable opportunity prior to the date of hearing to obtain the documentation and that cannot be challenged, in our view, as an improper matter to take into account.

	Secondly, the would be wrong in law if they failed to take into account some material fact, but that is not alleged.

	The alternative ground on which the exercise of a discretion can be challenged as wrong in law is that, as it is sometimes said, it is so irrational that no tribunal could have reached it. It would perhaps be more accurate to say that it is one which no tribunal properly exercising its discretion could have reached. That ground, in our view, is not one that can possibly be sustained here, because in addition to the grounds which the tribunal itself relied upon there was the further consideration that the issue before the Industrial Tribunal was not what view the tribunal itself took of the medical situation, but whether the employer acted reasonably in treating capability in the form of repeated absence as a ground for dismissal, and the relevant facts were therefore those which were before the employer at the date of taking of that decision. We therefore reject that ground of appeal.

	The second ground of appeal is that the tribunal erred in law in the way in which it approached the question of the possibility of an offer of alternative employment. The tribunal deals with that in this way in paragraph 4 of their Reasons, having canvassed the background facts:

“4. ... In those circumstances, the Tribunal did not consider that it was appropriate for the respondents to have considered alternative employment. ...”

The background to this point is as follows. First of all there was a history of repeated absences. Secondly, the reason given by the employee at the time and before the tribunal for those absences was sickness. Next, by accepting the deletion of any reference to conduct and relying solely on capability, the employers were at the hearing before the Industrial Tribunal making it clear, and the applicant and his advisers understood, that the genuineness of the sicknesses given as reasons of absence was not in dispute. Next there was the fact, already mentioned, of the agreed procedure for dealing with the absence of a good attendance record. Finally there was evidence before the tribunal, foreshadowed in the employers’ Notice of Appearance, that there had been a move of the applicant, Mr Craig, from the  “Broadbottom office”, as it is referred to, which we gather is a sub-post office, and where Mr Craig’s allegations of a poor, difficult and stressful working environment chiefly if not entirely centred, to another place of employment, and the employers’ case was that that had not improved the attendance record, and the manager who dealt with the internal appeal had taken that into account in deciding to dismiss the internal appeal. That plainly was a fact which the employer would be entitled to take into account in considering whether there was any hope, as it were, of improving matters by offering alternative employment in the shape of a different place of work so as to relieve any stressful conditions.

	The law as to the subject was addressed before us, and Mr Ginniff relied on two reported cases. The first is the case of Bevan Harris Ltd v Gair [1981] IRLR 520 and he relied in particular on a passage in paragraph 10 which contains this sentence:

“The appellants [who is that case were the employers] then did precisely what the Industrial Tribunal considered a reasonable employer would have done, namely they gave consideration to whether or not they could offer employment in another capacity.”

However, that sentence must be assessed against the background of the facts of that case, and of other passages in the judgment. It was a case of dismissal for failure to carry out the employee’s duties as a foreman in a satisfactory manner. The Industrial Tribunal had held that the dismissal was unfair because a reasonable employer would have demoted rather than dismissed. The headnote to the report notes that the Employment Appeal Tribunal in allowing the appeal found that the Industrial Tribunal had applied the wrong test by effectively deciding for themselves what should have been done by the employers, rather than applying their minds to whether or not the dismissal fell within the range of options open to a reasonable employer in the circumstances of the case. The passage in which the Employment Appeal Tribunal dealt with the general principles involved is paragraph 9 of their judgment, which begins:

	“In any event we do not consider that there is necessarily an obligation upon every employer who dismisses an employee on the grounds of capability to offer him employment in a subsidiary or another position. Every case must depend upon its own circumstances. Different considerations may apply to dismissals for other reasons. ... Where however the reason for dismissal is shown to be capability and where it is shown that the employee received adequate warning as to shortcomings and adequate opportunity to improve and has failed to do so we do not think that there is the same obligation upon an employer to attempt to fit him in a subordinate capacity.. Even if there is this must to a very great extent be influenced by the size and administrative resources of his undertaking. ...”

Now as to size and administrative resources, which is of course a matter which by statute must be considered, it cannot be said that the Post Office is small or lacks administrative resources, so we entirely accept that that this would not be a case where the Industrial Tribunal would be justified in considering that as a ground for finding that there was no need to consider alternative employment, but there is no indication whatsoever that they did fall into that error, and indeed, it is not to be supposed for a moment that they did, knowing what sort of organisation the Post Office was. However, the general principle seems to us to be, if we may respectfully say so, entirely as stated by the Lord McDonald in that case, that there is no necessary obligation upon every employer dismissing for incapability  to offer alternative employment; every case depends upon its own circumstances. We have described the circumstances of this case, and we remind ourselves also, as the Employment Appeal Tribunal repeated in the Bevan Harris case, that it is not for the Industrial Tribunal in any event to decide this matter, but to consider whether it is within the range of responses of a reasonable employer to dismiss in the circumstances. 

	Now it is true, on that point, that the words used by the Industrial Tribunal here were:

“4. ... the tribunal did not consider it appropriate for the respondents to have considered alternative employment ...”

However, this is not a case where they were substituting their own reverse view for that of the employer, they were concerned only to decide whether the decision made by the employer could be justified. It seems to us, therefore, in a sense by going further and agreeing with the employers’ decision they must have been taken to have included the lesser and proper test, that the employers’ decision was within the range of reasonable responses.  The sentence should perhaps have better have read: 

“In those circumstances, the Tribunal did not consider that it was incumbent upon the respondents to have considered alternative employment ....”

	The other reported case cited by Mr Ginniff was the case of P v Nottinghamshire County Council [1992] IRLR 362 CA. It is necessary to say at the outset that that was a very different case on its facts. It was the dismissal of an assistant groundsman, who had pleaded guilty to a charge of indecent assault against his daughter and asked for two other offences of indecent conduct to be taken into account. At the disciplinary hearing held by the employers the union representative acting for him raised the question of alternative work, and that was investigated, but no alternative post was found in fact for a quite different reason, namely that of his sickness record. By a majority decision, an Industrial Tribunal had held that he was unfairly dismissed. The Employment Appeal Tribunal allowed an appeal against that decision for reasons which are not reported, and the Court of Appeal dismissed the appeal from the Employment Appeal Tribunal and therefore upheld its decision that the Industrial Tribunal had erred in law. It is against that background that one must assess the passage upon which Mr Ginniff relies, which is in paragraph 20. Balcombe LJ, with who in the other two members of the court agreed, after considering some authorities, went on:

“Accordingly I am satisfied that, in an appropriate case and where the size and administrative resources of the employer’s undertaking permit, it may be unfair to dismiss an employee without the employer first considering whether the employee can be offered some other job, notwithstanding that it may be clear that he cannot be allowed to continue in his original job.”

Balcombe LJ goes on to deal with a quite different point, which does not seem to us to be of any relevance to the present case, whether the possibility of offering alternative employment has to be considered before the date of the original notice of dismissal or can be properly done later. That decision, being a decision of the Court of Appeal, would be binding upon us if it were authority for a clear proposition of law. To say simply that “in an appropriate case etc., it may be unfair to dismiss” without considering alternative employment, clearly does not establish any such rule of law as would be needed to entitle this appeal to succeed on that ground. 

	We therefore see no error of law in the approach of the Industrial Tribunal, properly understood in the way I have described earlier. The employer, as the tribunal expressly find in paragraph 5 of their reasons, was acting “within the band of reasonable responses available to a reasonable employer faced with the very poor attendance record of the applicant.” The Industrial Tribunal therefore fell into no error of law in this respect.

	The third ground of appeal is in effect one of perversity. The allegation is that certain findings which the Industrial Tribunal made on the medical evidence were findings which no reasonable tribunal could have made. The burden of this argument rests on the assertion -  because before us it can be no more than an assertion, since  we are not a tribunal of fact - that the true reason for Mr Craig’s attendance record was not the series of separate medical conditions shown on his medical certificates, but some underlying medical condition. 

	In approaching the assertion that the Industrial Tribunal were perverse in their findings on this we remind ourselves, yet again, that the roles of the employer, the Industrial Tribunal and this tribunal are distinct. It is for the employer to decide whether to dismiss, and at that stage, of course, it would be a proper area of investigation, if raised, whether the reason for the absences was a separate number of different sicknesses as shown by the medical certificates, or whether there was some underlying reason. It is for the Industrial Tribunal to determine whether the employer acted reasonably in treating as the reason for dismissal the grounds of capability, as evidenced by absences, which the employer did rely upon as the reason for dismissal. It is this tribunal’s responsibility to decide whether in discharging the Industrial Tribunal’s responsibility that tribunal has erred in law. 

	Dealing with the matter at those three levels, the evidence before the employers seems certainly to have included the attendance record and it seems, as we understand it, not to be in dispute that it included the doctor’s certificates produced for each of the absences. As to the opportunity at that stage for the applicant, Mr Craig, to make out a case that there was some other underlying cause, the tribunal made these findings of fact:

“4.   At all stages the applicant had had the opportunity to present medical evidence to the respondents if he felt that it would have had any bearing upon any decisions being made by the respondents in connection with the poor attendance record of the applicant. The applicant, however, chose not to present any such evidence to the respondents at any time.”

That is a finding of fact by the tribunal and facts are for the tribunal. That therefore was the position when the employers made their decision. On that basis the Industrial Tribunal  reached its decision that the employer acted reasonably. The Industrial Tribunal clearly asked itself in paragraph 5 the right question, namely, whether 

“... the decision to terminate the employment fell within the band of reasonable responses available to a reasonable employer faced with a very poor attendance record of the applicant.”

Indeed, the tribunal go further and find in paragraph 3(vii) that:

“... It was clear that there was no underlying medical condition which led to the applicant being repeatedly absent from work and any examination of the applicant’s sickness record properly led the respondents, and also the Tribunal, unanimously to the view that the reasons for the absence record of the applicant being so poor was a wholly unconnected series of illnesses and explanations ...”

Then again in paragraph 4, as already indicated, the tribunal:

“were unanimously of the view that the applicant’s attendance record indicated an extremely wide and unconnected range of reasons for absence.”

Again, as with the previous ground of appeal, the tribunal were there going further than they needed to, and as it were saying that they agreed with employer. But again, since they were agreeing, that must necessarily include the conclusion that they had to reach, namely that the decision of the employers was within the band of reasonable responses. In those circumstances the Industrial Tribunal, in our conclusion, were not perverse in their findings about the medical condition, and indeed this ground of appeal could much more briefly be disposed of by saying that it is an attempt to ask us to reverse the Industrial Tribunal decision on a pure question of fact, where there was plainly evidence upon which they could reach the conclusion which they reached. That ground also must therefore fail and the appeal must be dismissed.