![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Royal Mail Group Plc v. Tatum [2004] UKEAT 0655_03_1002 (10 February 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0655_03_1002.html Cite as: [2004] UKEAT 655_3_1002, [2004] UKEAT 0655_03_1002 |
[New search] [Printable RTF version] [Help]
At the Tribunal | |
On 6 January 2004 | |
Before
HIS HONOUR JUDGE ANSELL
MRS R CHAPMAN
MR S M SPRINGER MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MISS SUZANNE PALMER (of Counsel) Instructed by: Messrs Bond Pearce Solicitors Oceana House 39-49 Commercial Road Southampton SO15 1GA |
For the Respondent | MR PETER SAVILL (of Counsel) Instructed by: Messrs E J Moyle Solicitors 15 Beach Road Littlehampton West Sussex BN17 5HO |
HIS HONOUR JUDGE ANSELL
"I have looked carefully at this lady's sickness absence record and her personal medical notes.
None of her numerous short absences is part of any chronic medical condition. Therefore neither consideration of medical retirement or action under the Disability Discrimination Act are appropriate.
It may be difficult for a well-established pattern of sickness absence to change.
Action appears to be entirely managerial."
This was followed by a further 10-day absence certificated by her doctor at the end of May on the grounds of anxiety and depression.
"I asked Mrs Tatum if there was a link between her late attendances and her sick absences, saying that there were there occasions when she got up late and subsequently went sick rather than incurring another late attendance. Mrs Tatum said that this was not the case and all sick absences were genuine in their own right."
"There is no doubt that her attendance record is very poor, in normal circumstances even with the action she has taken I may not have allowed this appeal. However, as mentioned I am not convinced that her attendance has been properly managed in the past, and that appropriate action was taken to address the problem rather than tolerate it…
I am still not entirely convinced that Mrs Tatum will be able to reach the required standards of attendance. However, for the reasons outlined above I am giving her an exceptional chance to do so."
"Perusal of this lady's sickness absence record and medical file does not suggest to me that she is suffering from any chronic medical condition.
Therefore neither consideration of medical retirement or action under the Disability Discrimination Act are appropriate.
She ought to be able to give regular service.
Action appears to be entirely managerial."
"I explained to Mrs Tatum that I would draw a line under her previous absence record prior to her appeal hearing as that had been fully dealt with at that appeal hearing. Mrs Tatum and Mr Mayell accepted this as a reasonable course of action."
"On the same day as I carried out this interview I also interviewed Mrs Tatum regarding her late attendance record that had also reached the point where dismissal was under consideration. Mrs Tatum's late attendance problem is equally as bad as her attendance and on a number of recent occasions she has attended for work up to 2½ hours late, I believe there is a link between these two standards and Mrs Tatum is unable to achieve either consistently."
(1) "In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal."
Late attendances/Not genuine illness
Failure to exclude a work-related injury
Drawing the line
Consistency
36 "Even had the Respondent satisfied us that the sole reason for the Applicant's dismissal was her poor attendance record we had some concern in that we heard evidence from Mr Barnes that a number of other employees had a similar or worse attendance record than the Applicant but were not dealt with as harshly as the Applicant. This was not disputed by the Respondent. It appears that because there are a number of managers applying the attendance procedure and those managers have an absolute discretion to reduce the penalty even to a nil sanction there must inevitably be some inequality of treatment in the application of the procedure. It seems to us that for there to be a fair procedure it must be applied evenly amongst the workforce."
25 "We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation."
Failure to obtain proper medical evidence
37 "Still dealing with the Applicant's dismissal for poor attendance, we were also concerned that despite the fact that dismissal under the Respondent's attendance procedure is a matter of last resort, the Respondent took the decision that the Applicant had no medical condition justifying her being placed on the rehabilitation sickness procedure. This decision was based on a medical opinion which had been arrived at without the company's doctor having had any consultation with the Applicant or details of her medical records. Had the Applicant had a chronic illness justifying her being placed on the rehabilitation sickness procedure then she would not have been subject to the attendance procedure. For a doctor to not even see an employee or look at her medical record does not come close, in our view, to a reasonable investigation of a problem suffered by the Applicant which could be set in mitigation against her attendance record and have placed her on a different procedure. In his appeal Mr Linham places great reliance solely on the SOP's report. It seems to us that if a medical report is to carry such weight then the doctor concerned should at least have more information before him than the employee's attendance record."
14 "Summarising the various points taken by Mr Hinchliffe in our judgment, there was no requirement to have further medical evidence. Although the Applicant was in employment again at the time when he was dismissed, this is likely to be the situation where you have these intermittent absences and the fact that there had been those absences since February 1986 indicated that there was no improvement. The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgment – sympathy, understanding and compassion. There is no principle that the mere fact that an employee is fit at the time of dismissal makes his dismissal unfair; one has to look at the whole history and the whole picture. Secondly, every case much depend upon its own fact, and provided that the approach is right, the factors which may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following – the nature of the illness; the likelihood of it recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the adoption and the exercise carrying out of the policy; the important emphasis on a personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching. These, we emphasise, are not cases for disciplinary approaches; these are for approaches of understanding, and in this case, in our view, the employers acted perfectly properly, but, what is more important, the Tribunal had an opportunity of reviewing the whole situation; they did not fail in any way to reach a proper conclusion on a proper direction of law and we are unable to find any grounds on which they can be criticised."
"For the last 18 months of her employment she was absent on average for about 25% of the time. Most of these absences were covered by medical certificates which referred to conditions such as "dizzy spells, anxiety and nerves, bronchitis, virus infection, cystitis, althruigra of the left knee and a dyspepsia and flatulence."…
Before deciding to dismiss, the appellants consulted the general practitioner employed by them on a part-time basis. After looking at the respondent's medical certificates, the doctor advised that no useful purpose would be served by examining her because she had not had any illnesses which could be subsequently verified. He could not see any common link between the illnesses and said that the respondent was not suffering from any long term chronic illness."
13 "As for the second, there is no rule of law or practice to support the proposition that the appellants were bound to investigate the bona fides of the medical certificates issued in this case. The Tribunal themselves felt able to conclude, on the evidence before them, which did not include any medical evidence, that 'The truth of the matter is that Mrs Thomson was not suffering from any serious illness at any time during her employment. She suffered at the worst from a series of minor illnesses and apparently had a complaisant doctor who was prepared to issue certificates to justify her absences from work.' In our judgment, it cannot realistically be said, therefore, that any reasonable employer would have investigated the position in order to query the authenticity or genuineness of medical certificates before reaching a decision; but this is what the Industrial Tribunal, in the instant case, said that the appellants should have done: see paragraph 8 of the Reasons. One may ask also, what effective investigation could have been carried out by the employers, bearing in mind the advice given by the company's doctor and the sparseness of medical records in respect of minor ailments in general practice?
…
15 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. It is to be noted, in the instant case, that the appellants did seek medical advice before they made the decision, and we can see no ground for criticism of the quality of that advice or of the appellants' acceptance of it. Accordingly, there was no chronic illness for them to investigate. Moreover, if the appellants had investigated the dyspepsia and flatulence further, they would no doubt have reached the conclusion that the symptoms should have been cured very quickly by a simply diet, which was the Tribunal's own finding."