Appeal No.UKEAT/0823/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2003

Before
HIS HONOUR JUDGE ANSELL
MR D CHADWICK
MS P TATLOW

LONDON BOROUGH OF HARINGEY	APPELLANT

MR S PIROOZE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R HARRAP
(of Counsel)
Instructed by:
London Borough of Haringey
Corporate Legal Services
Alexandra House
10 Station Road
Wood Green
London N22 7TR	
For the Respondent	No appearance or 
representation by or 
on behalf of the Respondent

HIS HONOUR JUDGE ANSELL

1	This is the hearing of an appeal against the Decision of an Employment Tribunal sitting at London Central, who after a four day hearing in June of this year, in a Decision promulgated on 26 August, decided that the employee, Mr Pirooze, was not a disabled person within the meaning of section 1 of the Disability Discrimination Act, but also decided that he had been unfairly dismissed on the grounds of capability, and awarded him compensation totalling £3,349.99 of which £250 was the basic award.  Leave for this hearing was given by His Honour Judge Reid QC in Chambers on 13 October.  

2	The employee has failed to file an answer to the appeal and has had reminder letters from this Court dated 24 October, 11 November and 17 November.  Therefore, on 26 November the Registrar made an Order that unless an answer was lodged by 4 pm on 4 December, together with an application for an extension of time he would be debarred from taking any part in these proceedings and that debarring Order was made on 5 December.  He has not attended today’s hearing, and the London Borough of Haringey, the employers, have been ably represented by Mr Harrap. 

3	The issue in the case related to unfairness; it was not disputed that the reason for dismissal was capability.  The appeal is based on the conclusions within the Tribunal’s unanimous Decision in relation to unfairness, set out on page 21 of their Decision.  Paragraph 15(5) sets out a number of reasons supporting the finding.  Mr Harrap, on taking us through each and every factor, suggests that in most, if not all, of the findings the Tribunal were in fact in error and failed to give proper consideration to the evidence that had been presented to them, both in document and oral form, and it was in effect a perverse Decision.  

4	Overall he suggests that the Tribunal failed to remind themselves of their task not to impose their own views to what was reasonable or not, but to ask themselves the question whether the employers acted within a reasonable band of responses, both in relation to the reason for dismissal and in relation to the issue of fairness or unfairness.  One can certainly make the comment at the outset that nowhere in their Decision do they ask themselves that question as to whether these employers have acted within that reasonable band of responses.

5	The employee was employed on 8 January 2001 as a Trainee Probationary Parking Attendant, he completed that probationary period on 18 September.  The Borough have a Sickness Absence and Monitoring Control Procedure that is meant to monitor sickness absence, either when it is of a long term nature or frequent short term, or a combination of the two, and there are various trigger points which if reached, require managers to hold informal meetings with the employees, and if absences remain, then formal action is required.  It is said in the case, and not disputed, that within a period of 21 months he was absent for a total of 151 days, that is a substantial period of absence and in one year it was equivalent to 38 weeks out of 52.  

6	The procedure that the Council have is in a document which was before the Tribunal and is before us, entitled “The Sickness Absence Monitoring and Control Procedure” and a summary of it can be seen in our bundle on page 54.  If the triggers are reached, as they certainly were in this case in relation to absences, there is a procedure for the first formal meeting and intermediate meetings, and then if there is no improvement a final meeting when a further review or a recommendation for dismissal with notice can be made.  

7	In the case of this employee there were in fact more formal sickness monitoring meetings than was required under the policy; four such meetings took place prior to the final sickness interview; just to go over briefly the history of those various meetings, on 22 March 2002 there was the first formal sickness meeting and the employee was given what was described as the first formal sickness warning.  The first complaint raised by the Tribunal relates to the fact that within that formal meeting there are suggested areas of discussion which are set out on page 54, there are about seven heads of discussion and also additional matters if the employee has an underlying medical condition.  The first finding of the Tribunal was that these areas of discussion were not gone into at all.  In paragraph 15(5)of their Decision they say that the recommended steps were not followed at the first and intermediate interviews.  

8	Mr Harrap today has gone through a very careful detailed process, referring us to the documents in the case which detailed the notes of the meeting together with follow-up letters and it is abundantly clear to us, without us having to go into each and every heading, that in fact the major issues were in fact gone into in some detail either at the meeting or in the letter afterwards.  For example in the first meeting one of the areas that has to be explored is the impact on the service delivery.  Clearly, the Borough need their parking attendants out working, without that they are not getting the revenue in, and there is reference to the employee being reminded of that fact within the documents that we have seen, the letter confirmed the interview notes:
“You appreciate the impact of your absence upon service delivery as well as the effect on colleagues”.

9	Another area is the importance of keeping in contact with management in relation to sickness, and again that was stressed within the letter and the discussions.  We do not propose to go into each and every allegation, but we are quite satisfied as far as that first meeting is concerned, that for the Tribunal to suggest, as they did that, the recommended steps were not followed, is a perverse view of the facts that were in front of them.  

10	Following that first meeting, a request was made of Occupational Health for a report and a report was received from Dr McGrath on 16 April.  He reported:
“ stress related symptoms and foot pain; the stress related symptoms had been more severe in recent weeks, his foot pains however may well take substantial time to resolve.”

It was suggested that the wearing of trainers as opposed to formal footwear would help.  He said “Providing these conditions ….. I would sanction his return to work for four days per week.”.  A return to work he said “is reasonable on a trial basis”.

11	The next meeting took place on 15 May, and again that is documented in the bundle of documents; again there are notes of that meeting, together with a letter following up, and once again, without going into all the details, we are quite satisfied that the headings for discussion set out in the Disciplinary Sickness Policy were in fact gone into in detail at that meeting.  Again, for example, the impact on service delivery was set out by Mr Sharkey, who was the Operations Manager who was conducting that meeting.  The advice had been received from Occupational Health, together with a copy of their report to the employee and there was discussion at the meeting about his footwear.  The intention to get him back to work was set out, targets for improvement were set out and the possible risk to employment should absence levels remain unacceptable was again set out at the meeting and in a very full letter that followed.  

12	The meeting was followed, unfortunately, by further periods of absence; he was away from 2 - 4 July and was also absent for a week in August, allegedly suffering from a stiff neck which he believes to be arthritis.  There was a further meeting on 10 September.  It is of significance that on this occasion the Applicant was represented by Mr Swallow, his chosen Unison representative, and again that meeting is set out in the documentation.  The notes of the meeting are on page 80, followed up again by a letter on 18 September.  The Applicant said at the meeting that he was sweating and had blackouts, he had not actually had a blackout, but “sweats from feet to head, dizziness, lack of oxygen.  I have fainted twice before in the past ….spondolitis on neck and shoulders, the doctors say it is arthritis.”.  The Applicant claimed that he would like to return to work but his GP said that until they checked out the blackouts, he would not be advised to go back to work, and Mr Sharkey said he would send him a letter advising him that his job was at risk.  

13	Once again, Mr Harrap has taken us through the points for discussion, and again, areas such as the impact on service delivery, prognosis, work related issues, targets for improvement and the risk to employment, were all set out at that meeting.  In fact, his current absence from work had effectively started on 4 July at that time, that was recorded in the letter of 18 September from Mr Sharkey, confirming the meeting.  He was awaiting a further report from Occupational Health, but meanwhile, had sent him a special applications form for him to complete and return to Personnel, in order for them to seek alternative employment.  It is a matter of significance that that form was in fact not completed for some three weeks.  At the meeting, Nicola Roberts, from Personnel, was actually present and he was asked if he had any problems that he should contact either Mr Sharkey or Nicola Roberts.  

14	Around this time, on 17 September, Dr McGrath saw the Applicant and a further report was received by him.  Dr McGrath commented that the employee:
“ remained unfit for his substantive post and it is difficult to give any realistic guidance as to when he may be able to return.  He has a variety of symptoms and has recently been referred to two consultant for further investigations.  Until there is definition of the cause of the symptoms Mr Pirooze should not return to his substantive post.”
He did suggest that:
“The only prospect for an early return to work would be his redeployment initially on temporary grounds to essentially administrative tasks.  This should enable him to attend work which would ease some of the growing pressures on him.”

It appears from the letter and the notes of the meeting in September that the issue of possible other jobs within the Parking Department was already being explored, but that none was available at the present time, which was why it was suggested that he should complete the application form so that he could be possibly redeployed in other areas of the Council.  He had still not returned to work, nor was there was a clear prospect as to when he was going to be able to return to work to undertake any duties.  He was signed off until the beginning of November and therefore it was decided that a final meeting would take place with Ms Cunningham.  It was a very detailed meeting, Mr Swallow again represented Mr Pirooze at that meeting and we have seen the notes of that meeting, and the conclusion was dismissal.  He was informed by Ms Cunningham at the meeting of the result and the reasons for it.  He was written to thereafter, explaining the reasons for the dismissal, particularly in relation to the overall level of sickness and his future capability to attend work as a Parking Attendant.  She noted the number of meetings that had been held to discuss progress and welfare, and she added this:
“We had also explored the possibility of alternative light duty work but regrettably nothing suitable was available.”
It referred to Occupational Health reports:
“ the reports do indicate that you will not be able to return to work in the foreseeable future”
and it was therefore decided to dismiss him on the grounds of capability.

15	The policy of the Council, however, is not to leave matters there but to explore the possibility of redeployment and a further report was sought from Dr McGrath which suggested that Mr Pirooze was fit to return to alternative work, although he had suggested quite clearly to Mr Sharkey that he had no intention of returning to work until his blackouts had been looked into by the GP.  There was work done by Ms Roberts to assist him in preparing a CV and also applications were made for five or six positions with the Council, none of which were successful and he therefore left in November.  

16	An appeal hearing took place, regrettably, some months later on 27 May.  The factual finding of the Tribunal concerns us because rather than dealing with the length of the meeting as a whole, they merely said this:
“The panel deliberated its decision for 10 minutes (between 9.15 pm to 9.25 pm) and announced its decision.  They dismissed the appeal.”

For our part we find that a gross over-simplification of what actually occurred at the appeal process.  Because on analysis of the documents, it appears that it was a meeting that lasted for some three hours, there was very, very careful consideration of all the issues in the case, albeit that the deliberative process did in fact only last for ten minutes.  

17	That then is the factual background, and we return to the reasons that the Tribunal gave for coming to a view that this was an unfair dismissal.  As he indicated above the first one was in relation to the process and the failure to deal with the various factors that are set out in the monitoring process we have already made it clear that we cannot agree with the Tribunal’s findings, and indeed find their findings perverse on this particular issue, when one analyses the documents and the evidence that were before them.  

18	They then go on in their next criticism to suggest that too much emphasis was placed on the return to work date without fully exploring the other factors, the impact on service delivery and the genuine reasons for the absence.  Again, the documents simply do not support that view of the facts taken by the Tribunal.  The impact on service delivery in particular had been repeated at all the meetings that were held during this process with the employee, and if one looks to the conclusions of Ms Cunningham, who conducted that process, she does indeed refer to the effect on the service and trading account of a man who had an absence record of approximately 42%.  In fact that was an under-estimate, taking into account the current absenteeism that was taking place, it was a much higher figure.  The question of the genuine reasons for absence had again been gone into in considerable detail by the various stage meetings; they had reports obtained from the Occupational Health doctor and, again, that conclusion does not seem to be justified on the facts of the case.  

19	The next criticism is that Ms Cunningham did not act reasonably in that she should not have dismissed the Applicant before obtaining a further medical report from Occupational Health and set the date for a further review.  Here, perhaps, is the clearest example, in our view, of the Tribunal seeking to impose their views as to what they would have done in the circumstance, rather than considering whether the approach that Ms Cunningham had taken was a reasonable one.  The issue of a further report was indeed raised with her; she was faced with the prospect of continuing absence, of no clear return to work, and it is helpful to look at the conclusions in her notes of meeting which were read out to the employee.  
“ Shaks I understand that you did not return your special application form to personnel until 5 October, even though you were aware of the final sickness monitoring interview date.  You also did not fill out sufficiently even though Nicola offered you help.  I do not feel that sufficient effort has been made on Shak’s side to help himself.  The only prospect of return is when the medical expires on 7 November, and that still is not saying that he will return then.  You have been here for under two years, and your absence record is properly 42%.  I look at absenteeism and how it affects the service and trading account, so I have reached the decision and have decided to dismiss you on the grounds of your capability to attend work.”

It is then pointed that there is an appointment for him to go and see Nicola Roberts and those matters are amplified in the letter:
“The hearing considered your overall level of sickness absence and your future capability to attend work in your capacity as a Parking Attendant.  It was noted that a number of meetings have been held with you to discuss your progress and welfare.  We had also explored the possibility of alternative light duty work but regrettably nothing suitable was available.  You appreciated the effects of your absence upon colleagues as well as the financial impact on the trading account. 
The medical reports received from the Occupational Health Unit do not support an ill health retirement although the reports do indicate that you will not be able to return to work in the foreseeable future.  Therefore whilst I greatly sympathise with your situation I was left with no alternative but to terminate your employment with this Service on the grounds of capability”.

20	It seems to us that had the Tribunal asked themselves the correct questions as far as Ms Cunningham’s task was concerned, namely did she, within her discretion, apply it correctly within the band of reasonable responses, there could have been only one conclusion; she had acted reasonably within the processes that had taken place.  She had considered the previous meetings; considered the notes of that meeting and considered what was said to her by the employee, who was, of course, represented at that time by Mr Swallow, and we cannot see that it justifies a finding that she had acted unreasonably within the reasonable bounds that a manager would be given.  

21	The next criticism is that Haringey did not carry out any skills assessment on the Applicant; they were not pro-active in that regard, they merely reacted to the Applicant’s applications.  Here again, that appears to be an unfortunate distortion of what actually took place.  We have seen the notes of the two meetings with Nicola Roberts, they, of course, followed a period of three weeks when the employee was inactive in terms of completing the form.  The second of those meetings with Nicola Roberts took a period of some two hours.  She gave advice as to how the CV that Mr Pirooze had prepared should be amended, and on page 98 and 99 there are her handwritten amendments to the CV.  Mr Pirooze never took those suggestions up and when he filed applications for the five or six jobs that he had been notified about, he used the original CV.  As it transpired, he was not successful in any of those alternative employment requests probably because he was unfortunately not a sufficient grade to meeting the entry requirements.  To suggest that Haringey was not pro-active in that regard, disregards the original sending of the form prior to the final meeting and disregards the efforts of Ms Roberts and the care, indeed, that she showed.  

22	The next argument is that Ms Cunningham did not set out the reasoning process.  Again, we have referred already to the reasons she gave at the meeting and the reasons she gave in the letter.  The notes of the hearing clearly show how the decision was reached, and the letter makes reference to the consideration of sickness absence, monitoring interviews, the exploration of alternative light work, the effect of absence on colleagues and the final impact on the trading accounts, together with consideration of the medical reports from the OHU Unit.  Again, we cannot see that this amounted to a flawed decision or a flawed reasoning process.

23	There was reference to the failure to have an impact on the service delivery; again, as we have already indicated, time and time again there was reference to the absence on service delivery, the importance of that and particularly, in Ann Cunningham’s written statements, at paragraphs 5 and 14 there is specific reference to the effect that that has on the employer’s business, and it was also briefly referred to in her oral evidence, notes of which we have seen at page 146 of the bundle.  The matter had already been taken up by Mr Sharkey in the two meetings that he conducted, that can be seen on pages 74 and 92.  

24	The next complaint is that Ms Cunningham did not give due consideration to alternative employment.  In her letter she made reference to the fact that alternative employment was not available; we understand that reference to mean at that stage within the Parking Department.  It is right to say that in the notes of the final meeting there is no specific reference to consideration being given to alternative employment, but in fact that had already been taken up, to a certain extent, in the September meeting with Mr Sharkey, where there was a comment made that there were no other positions available at the present time, which is why he was then given the form to complete.  

25	The Tribunal then went on to deal with a particular matter that had been raised apparently for the first time at the appeal meeting, and taken up in more detail by the Chairman at the Tribunal hearing.  The Tribunal said this;
“There was evidence that Haringey had recruited five persons (including new employees) in the Parking Department for dealing with the Congestion Charges.  However, at present they are engaged in purely administrative duties.  No consideration was given as to whether the Applicant could have been offered one of those post, if necessary by dispensing with the services of one of the new recruits.”

The process in relation to taking on these five Congestion Charge employees had taken place long before these matters came to a head, much earlier in 2002.  The employee had in fact applied for one of these positions; he was apparently unsuccessful firstly because he was quite late in sending in his form, and secondly because it was hoped that they might be able to recruit persons with disability, as it was the sort of work that would suit persons who were in some way restricted in terms of their movement; they were mainly desk-bound jobs.  In fact what had happened was because of the delay in the implementation of the charges, and particularly, the bus lanes involved in this particular operation, these new employees had been temporarily transferred over to administrative tasks.  

26	What was suggested, apparently, by the Chairman was that the employers, having taken on these particular employees and no doubt trained them, and particularly if they were persons with disability, obviously spent some time helping them in their new jobs should then consider dismissing one simply to allow Mr Pirooze, with no certainty as to when he was going to return to work, to take up this position.  Frankly, all three of us on this Tribunal are amazed by that suggestion and how it could form part of the Tribunal’s thought process.  

27	The final reason advanced by the Tribunal is the criticism that it took the appeal hearing ten minutes to reach its decision, and again we have pointed out that the manner in which the Tribunal have dealt with this seems to do a disservice to those persons who are involved in the appeal process.  The notes of the hearing run from page 120, when the hearing starts at 6 o’clock, to page 136 when the hearing finally ends at half past nine, some three and a half hours, albeit that the deliberation period at the end was fairly brief.  

28	The Tribunal suggests that the appeal hearing was dealing with complex issues, but Mr Harrap rightly reminds us that they were not dealing with a disability issue at all, they were merely dealing with the issue as to whether dismissal, on the grounds of capability because of continuing sickness, was fair or not.  Having said that, we have indicated that the hearing was very detailed and we have seen excellent and comprehensive detailed notes, and to dismiss the matter in the way that the Tribunal have done seems to be an unjustified criticism of what was, on our view, a careful process.  It follows from what we have said that we find all the reasons given by the Tribunal for coming to the conclusion that this was an unfair process to be perverse, coupled with their failure to ask themselves at the outset what was the correct approach in dealing with these matters.  

29	All that remains for us therefore is to decide whether this matter should be returned for a fresh hearing before a different Tribunal or whether we are able to say that effectively no reasonable Tribunal, properly directing themselves and properly considering all the evidence, could come to the view that this was an unfair dismissal.  Where there is a dismissal, the starting point for analysing the duty of the tribunal in deciding whether or not the dismissal is fair is the EAT decision in Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, [1977] ICR 301. In that case Phillips J emphasised the importance of scrutinising all the relevant factors:
“Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?”
And he added that the relevant circumstances include:
“the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do”.
In International Sports Co Ltd v Thomson [1980] IRLR 340 the employee had an absence record of 25 per cent of the year preceding her dismissal. In the course of delivering judgment for the EAT Waterhouse J indicated the duties imposed on an employer who wishes to dismiss in these circumstances:
“In such a case, it would be placing too heavy a burden on an employer to require him to carry out a formal medical investigation and, even if he did, such an investigation would rarely be fruitful because of the transient nature of the employee's symptoms and complaints. What is required, in our judgment, is, firstly, that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings, after the employee has been given an opportunity to make representations. If then there is no adequate improvement in the attendance record, it is likely that in most cases the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee.” 

30	We have come to the view, appreciating that it is rare for this Court to impose its view on the facts, that no Tribunal, faced with the evidence we have seen and considered, could have come to any other decision, other than this was a fair dismissal in all the circumstances.