Appeal No. UKEAT/0054/08/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 4 March 2009

Before
THE HONOURABLE LADY SMITH
MISS S AYRE FIPM FBIM
MS A MARTIN

RENFREWSHIRE COUNCIL	APPELLANT

MR R FERGUSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR M CONAGHAN
(Solicitor)
Renfrewshire Council Legal Services
3rd Floor North Buildings
Cotton Street
Paisley
PA1 1TT	
For the Respondent	MR J BLACK
(Solicitor)
Messrs Stirling & Mair Solicitors
28 High Street
Johnstone
Renfrewshire
PA5 8AH	

SUMMARY

UNFAIR DISMISSAL
Procedural fairness/automatically unfair dismissal
Compensation
Appeal upheld.  It was not open to the Tribunal to find that the employers had failed to comply with step 3 of the statutory dismissal procedure.  Claim dismissed.

THE HONOURABLE LADY SMITH

INTRODUCTION
1.	This is an appeal by local authority employers against a judgment of the Employment Tribunal sitting at Glasgow (Employment Judge Ms L J Crone) finding that an employee who was employed as a gardener had been unfairly dismissed.  The finding of unfair dismissal was that it was an automatically unfair dismissal on account of, in the Tribunal’s judgment, the employers’ failure to complete step 3 (the appeal stage) of the statutory dismissal procedures (see: Employment Act 2002, Sch 2).

2.	We will continue to refer to parties as claimant and respondents. 

BACKGROUND 
3.	The claimant took up employment with the respondents, as a gardener, on 19 June 2000.  A history of absence, unauthorised absence and lateness developed. 

4.	In October 2002, a meeting was held with the claimant under the respondents’ Managing Absence Policy.  He was told that unauthorised absence had to stop and his pattern of lateness had to greatly improve. 

5.	There were a further nine meetings with the claimant regarding absences and lateness between February 2003 and 15 December 2004.  On those occasions, his explanations for these absences and lateness were accepted.  He had also failed to attend a number of meetings to which the respondents had called him during that period.  There had been problems with his mail as he had moved addresses on a number of occasions.  The meeting on 15 December 2004 was a return to work interview and the claimant was cautioned that his failure to attend appointments and meetings was not acceptable.

6.	The claimant commenced a period of long term absence from work in October 2005.  On 2 March 2006, the respondents wrote to the claimant requesting him to attend a meeting on 8 March 2006 to discuss his absence and health.  He failed to attend the meeting or to provide a reason for his absence.  The respondents wrote to him by letter of 8 March warning him that his contract of employment required him to attend such meetings.  He failed to attend another such meeting that was fixed for 13 March and it appears that the same happened in respect of a meeting on 20 March.  A disciplinary hearing was fixed for 21 April 2006 as a result.  The claimant’s union representative, Mr Marshall, attended and asked for the hearing to be rescheduled.  It was re-fixed for 13 April and again Mr Marshall asked for it to be rescheduled.  Hearings were subsequently fixed for 21 April and 4 May and the claimant did not attend.

7.	On 2 June 2006, the respondents wrote to the claimant requiring him to attend a disciplinary hearing on 7 June 2006.  He was advised that the respondents’ reasons for the hearing were:
-	failure to attend absence management meetings on 8 and 13 March 2006
-	failure to make contact or give a valid reason for being unable to attend a meeting on 20 March 
-	failure to follow the respondents’ absence notification procedures, and
-	failure to attend the disciplinary hearings fixed for 21 April and 4 May.

8.	The claimant attended the hearing on 7 June with Mr Marshall who spoke on his behalf.  The claimant was reminded of his duty to provide medical certificates if absent and to do so on time.  He was reminded that he had received previous warnings about the need to contact the respondents if he was off sick.  Since the last occupational health report found that the claimant was fit to return to work, Mr Marshall agreed that the claimant would attend his GP and obtain a “fit to work” certificate.  The claimant and Mr Marshall were advised that a written warning would be issued to the claimant.  Thus, as the Tribunal put it, the respondents, at this point, determined to take a more robust approach with the claimant.  The matter of contact with the claimant when he was off was raised.  The respondents had had a prior practice of contacting him by telephone and he asked that that be continued.  The respondents advised, however, that they required an address for correspondence and he subsequently provided them with his father’s address. 

9.	An occupational health report of 12 June 2006 advised that the claimant should have a phased return to work, and by letter of 18 June 2006 the respondents asked the claimant to attend a meeting on 26 July to discuss it, reminding him of his contractual obligations to do so.  The letter warned him that failure to do so could result in disciplinary action, that his current medical certificate expired on 12 July and that if he did not provide a further one his sick pay would stop.  He did not receive the letter. 

10.	A further disciplinary hearing was fixed for 11 October and the claimant was notified of it by letter dated 3 October.  He contacted Mr Marshall.  At paragraph 42, the Tribunal found:

“The claimant contacted Mr Marshall … regarding the fact that he was unable to attend the disciplinary hearing because he had just had his flu injection (which caused a reaction with his diabetes).  The claimant asked Mr Marshall to speak to Mr McManus and have the hearing rescheduled failing which the claimant would ‘get out of his sick bed’ and attend the hearing.” 

11.	The Tribunal found that Mr Marshall told the respondents’ Mr McManus “of the claimant’s situation” but did not ask for the hearing to be rescheduled.  They also found, however, that Mr Marshall told the claimant that the hearing would be rescheduled. 

12.	The hearing took place on 11 October.  The claimant did not attend.  The respondents decided to dismiss the claimant.  He was not notified of the fact of his dismissal until 28 November 2006 when he telephoned the respondents to tell them that his GP had “signed him off” as fit for work.  He was told that he had been dismissed and a letter was sent to him that day advising him of his dismissal and the reasons for it. 

13.	The last paragraph of the dismissal letter included the following terms:

“… you may appeal, in writing and preferably through your Trade Union, within fourteen days of receipt of this letter, to the Head of Personnel Services, Renfrewshire Council, North Building, Cotton Street, Paisley, PA1 1TS for consideration by the Corporate Services Personnel Appeals and Applied Conditions of Service Appeals Panel.  A payment of one week’s notice will be paid to you in respect of your dismissal.” 

14.	The claimant wrote to the respondents in a letter dated 4 December which, having been received by them, bore two date stamps: 19 and 24 January 2007.  Parties were agreed that it was received outwith the 14 day time limit set out in the respondents’ disciplinary procedure and stated in their letter of 28 November.  The letter stated the claimant’s address and then proceeded in the following terms:

“To Whom It May Concern,
I am writing in response of a letter I have received from the council today to my ex girlfriends address 11 Broomlands Lane Paisley stating that I was sacked as of the 11 October 2006.  Reasons given were that I had not attended a meeting on 26 July 2006 and also failure to attend meeting on 11 October 2006.  I was not or had not given this address to the council to get my mail, my postal address was my dads 2 Broomdyke Way Paisley.  Which after my phone call on the 28 November I received my p45 to my dads address and then this letter to my ex girlfriends dated 28 November 2006 saying that I had been sacked.  I got confirmation from my union official to get the meeting on the11 October rescheduled because I had just received my flu vaccination and was told by her that was fine.  And the other meeting I did not receive any letter to my address that I had given to the council and don’t know where you have sent it to.  I have been instructed by my union to lodge a complaint for unfair dismissal and to send a copy of this letter and all other correspondence to the employment tribunal.
Yours sincerely
Robert Ferguson”.

15.	The respondents did not treat that letter as a letter of appeal; it did not state that it was an appeal and it was received outwith the 14 day time limit.  Accordingly, no appeal hearing was fixed. 

16.	The claimant presented a claim to the Employment Tribunal on 19 January 2007.  The claim form was originally dated 4 December 2006 but the date beside the signature has been manually altered to read 4 January 2007.  We note that despite having received the respondents’ letter of 28 November by 4 December 2006, he seems to assert in his form ET1 that he has never had correspondence from the respondents telling him that he had been “paid off”.

The Tribunal’s Judgment 
17.	The Tribunal determined that, in not allowing the claimant an appeal hearing, the respondents had failed to follow stage 3 of the statutory dismissal procedures.  They consider the terms of his letter of 4 December and, at paragraph 84 they state:

“We were satisfied the refusal of the respondent to interpret the letter as a letter of appeal, was a response which fell outside the band of reasonable responses which a reasonable employer in the same, or similar circumstances would have adopted.”  

18.	They then turn to the timing of the letter, decide that since parties were agreed that it failed to comply with the 14 day time limit they did not need to consider exactly when it was received by the respondents and continue , in paragraph 86:

“We did consider whether the respondent’s decision not to accept the late appeal complied with the statutory dismissal procedure.  We noted the procedure states that if the employee informs the employer of his wish to appeal the employer must (our emphasis) invite the employee to attend a further meeting.  The claimant in this case did inform the respondent of his wish to appeal against the decision to dismiss and, accordingly, we were satisfied that in order to comply with the statutory dismissal and disciplinary procedure the respondent was obliged to invite the claimant to a further meeting.  The respondent did not do so and we were satisfied this failure amounted to a breach of the statutory procedure.” 

19.	At paragraph 90, the Tribunal state:

“We did not consider it was setting the bar too high to conclude that strict compliance with a time limit effectively removed the employee’s opportunity to appeal against dismissal in contravention of the statutory procedure.” 

20.	The Tribunal found that the reason for the claimant’s dismissal was his conduct in having repeatedly breached the respondents’ absence management policy over a considerable period of time. 

21.	As to compensation, the Tribunal found that the claimant was unfit to work and in receipt of Incapacity Benefit throughout the period 11 October 2006 to 27 May 2008 (being the date they anticipated their judgment being promulgated; the last day of the hearing was 30 April 2008), a total period of 85 weeks.  They awarded him loss of earnings to cover the whole of that period.  They also made an award of future loss of earnings for a period of three months, noting that the claimant hoped to be “signed off” fit for work by the end of May and that there ought to be gardening work available. 

22.	The Tribunal considered whether there required to be a “Polkey” deduction.  It considered that there was no foreseeable likelihood of the respondents having dismissed the claimant because they had not started such proceedings during his employment (paragraph 124), the latter despite the fact that there had been a series of dates for disciplinary hearings during 2006.  They found that they were not satisfied that the claimant would have been dismissed if there had been an appeal hearing but recognised there was a chance of that happening.  They reflected their view of that chance in a Polkey deduction of 25 per cent. 

23.	The Tribunal awarded an uplift in compensation of 10 per cent under s.31 of the 2002 Act, taking the view that there were no exceptional circumstances making it unjust or inequitable to do so. 

24.	The Tribunal considered whether the claimant had contributed to his dismissal.  It noted that the respondents’ stated reasons for his dismissal were his failures to attend the absence management meeting on 26 July 2006 and the disciplinary hearing on 11 October.  They found that his non attendance at the July meeting was not unreasonable as he had not received the letter intimating it and the respondents had not telephoned him to tell him about it.  They found that it was not unreasonable for him to have failed to attend on 11 October as his union representative had told him that it was being rescheduled.  In these circumstances, the Tribunal found that the claimant had not contributed to his own dismissal. 

Relevant Law 
25.	The standard procedure was the relevant statutory dismissal procedure in this case. Schedule 2 of the 2002 Act provides for the first step to be the statement of grounds and the second step to be a meeting after which:

“(4) … the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.” 

26.	Step 3 concerns appeal and its provisions include:

“(1) If the employee does wish to appeal, he must inform the employer.
  (2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting…”

27.	We observe that it is obvious that the right of appeal which step 3 has in mind is the right of appeal of which the employer must have given notice at the end of step 2.  If a right of appeal is time limited, then the exercise of the right is conditional on it being asserted within the time limit.  Another way of looking at it is to say that it will cease to exist at the end of the time limit.  Plainly, the time limit must be realistic; a ridiculously short time limit, such as 24 hours, would be liable to be regarded as affording no true right of appeal at all.  So long, however, as a reasonable time limit is provided for then the employers’ obligation to invite the employee to a further meeting under step 3 will only arise if the employee gives timeous intimation of his wish to appeal .  

28.	Paragraph 12 of Part 3 of Schedule 2 provides:

“Each step and action under the procedure must be taken without unreasonable delay.” 

29.	Thus, even if an employer does not provide a time limit for appealing, the employee is obliged to intimate his wish to appeal without unreasonable delay.  If he unreasonably delays in doing so then the employers’ obligations under step 3 will not arise.  That is not to say that it would not of course be open to an employer to decide that he will fix an appeal hearing in any event but he would not be doing so under the statutory procedure because he would, through the employee’s breach of his obligation to proceed without unreasonable delay, have been relieved of any statutory obligation in that regard. 

30.	The ACAS Code of Practice 09/04 regarding appeals provides:

“44. Employees who have had disciplinary action taken against them should be given the opportunity to appeal. It is useful to set a time limit for asking for an appeal – five working days is usually enough.” 

31.	It would, accordingly, appear that an employee can reasonably be expected to intimate a wish to appeal within five working days.  In this case, and we are aware in the case of many other employments, the employee was given longer; he was given fourteen days.

The Appeal 
32.	For the respondents, Mr Conaghan submitted that the Tribunal had erred in law in holding that the claimant’s dismissal was unfair.  They were wrong to have found that the failure to hold an appeal hearing was a breach of stage 3 of the statutory procedure.  It had failed to look at the whole circumstances together, as it should.  The letter did not read as a letter of appeal and it had been submitted only after a delay.  The Tribunal were wrong to think that it did not require to determine exactly when the respondents had received the letter.  The only evidence about the date of receipt was that it was, on the basis of the respondents’ date stamps, received by them on 19 January 2007; it was accepted that it was received outwith the 14 day time limit.  19 January was seven and half weeks beyond the date of the dismissal letter.  It was also the day that the ET1 was submitted.  The respondents were thereafter in the position of giving consideration to the claimant’s letter against the background of him having lodged a claim with the Tribunal.  The Tribunal wholly failed to have regard to that and to the question of whether the respondents were obliged to hold an appeal hearing in a case where Tribunal litigation had commenced. 

33.	Further, Mr Conaghan submitted that the Tribunal had erred in their assessment of compensation.  The claimant was on sick leave from 11 October to 28 November 2006 and had exhausted sick pay.  Further, he was not fit for work thereafter up to and beyond the date of the hearing.  The claimant led no evidence to establish that that prolonged period of unfitness was related in any way to the respondents’ decision to dismiss him.  The Tribunal had also erred in awarding the uplift; any failure to complete the procedures could have been avoided if the claimant had timeously lodged an appeal. 

34.	He also submitted that the Tribunal had erred when it came to the Polkey deduction.  They failed to have regard to the claimant’s continued uncertified absence after 26 July, to the fact that the respondents had, as of June 2006, determined to take a more robust approach with the claimant, to the disciplinary action which was the subject of the Tribunal application and to his history of breaches of absence procedures.  Similarly, it had erred in its assessment of contribution.  There was ample material to show that the claimant had contributed to his own dismissal. 

35.	For the respondent, Mr Black submitted that the Tribunal had not erred in law.  It had looked at both whether the letter of 4 December was an appeal letter and whether it was timeous.  The claimant had spoken to his union representative who had seen the letter and advised him to wait 28 days before applying to the Tribunal.  The respondents’ HR Adviser, Ms McLean, had said in evidence that there could be flexibility over the appeal time limits and that if the letter had come to her (which it did not) she would have preferred if it had been treated as an appeal letter.  He was critical of the fact that there had been a delay between the hearing of 11 October and the letter of 28 November.

36.	Regarding the fact that the date the ET1 was presented and the first date stamp on the claimant’s letter were the same dates, 19 January 2007, was said to be a coincidence.  

37.	Regarding the long period allowed for loss of earnings, Mr Black said that being told that he had been dismissed rendered the claimant unfit for work.  He accepted that he was in difficulty in taking that reaction any further than the date of that discovery, 28 November. 

38.	Regarding the Polkey deduction, Mr Black fairly accepted that the Tribunal had not taken into account all factors but pointed to their having taken into account a number that were relevant.  Regarding contributory conduct he submitted that they had not erred; it was correct to confine their considerations as they did.  A Tribunal ought not to look beyond the employers’ stated reasons for dismissal when considering whether or not the employee contributed to it. 

Discussion and Decision 
39.	We have considered the terms of the claimant’s letter of 4 December 2006 and are persuaded that the Tribunal erred in failing to recognise that it does not read as a letter of appeal at all.  Its terms are such as to indicate that the claimant has received the respondents’ letter of 28 November, that he has taken the advice of his union representative and that what, in the light of what he refers to as his union’s instructions, he was doing was that he was lodging a complaint for unfair dismissal with the Employment Tribunal.  The letter is not in any sense a statement of a wish to appeal the decision to dismiss.  Further, even if it did somehow fall to be read as a letter of appeal, it was not an intimation of a wish to appeal by virtue of the right of which he had received notification in the letter of 28 November.  That right was a right to appeal within fourteen days.  The Tribunal were satisfied that the claimant did not seek to appeal within fourteen days.  

40.	The Tribunal may have confused considerations that might arise when looking at the question of whether or not a dismissal was procedurally unfair on a basis other than a failure to comply with the statutory dismissal procedure with those which arise in the statutory dismissal procedure context.  In the case of the former it will often be appropriate to look at what action an employer could have taken that he did not take and the dismissal may be found to have been unfair on account of the employer not, for instance, relaxing his own procedures in particular circumstances where any reasonable employer would have done so. 

41.	The Tribunal here had, however, only to consider the question of whether or not there was a failure to follow the statutory procedure.  We cannot see that it was open to them to determine that there had been such a failure.  The claimant did not write intimating a wish to appeal and, in any event, by the time his letter was communicated, he was in breach of his obligation not to delay unreasonably and the right of appeal which he had, had expired. 

42.	That disposes of the appeal.  The finding of unfair dismissal cannot stand and the remedies awarded will, accordingly, fall away.  We should, however, say a word about the Tribunal’s approach to compensation. 

43.	Firstly, regarding its calculation of wage loss (a significant sum: £20,625 before allowance for benefits of £7,560), we agree that there was no basis on which it was open to the Tribunal to make any award of wage loss at all.  The claimant was off sick as at 11 October and the Tribunal found that he remained unfit for work throughout the period between then and the end of their calculation period, 27 May 2008.  There was no evidence before them nor findings made about the nature of the claimant’s unfitness for work during that period so it was simply not open to them to conclude that it was due to his dismissal.  He was not entitled to any award for loss of earnings.

44.	As regards the Polkey deduction, we agree that the Tribunal, for reasons that are not clear, failed to have regard to the whole picture which included a history of repeated absences and lateness and the respondents having got to the stage, by June 2006, that they determined to be more robust.  There were also the facts of the claimant having failed to send in appropriate certification of his absence after July 2006 and of the respondents having, contrary to what the Tribunal suggest, having begun disciplinary proceedings against him.  It appears to us that the Tribunal did not have any basis for saying that there was no foreseeable likelihood of the respondents dismissing the claimant.  Had the finding of unfair dismissal survived this appeal, we would have been persuaded that the maximum deduction of 50 per cent ought to be made.  We would, similarly, agree that the Tribunal erred in failing to find that the claimant contributed to his own dismissal.  They confined their considerations to what happened on the dates he failed to attend in July and October 2006 but they required, again, to look at the whole facts and circumstances so as to consider whether the dismissal was caused to any extent by the action of the claimant.  It is not the case that Tribunals can only look at the conduct that forms the reason for the dismissal.  Section 123(6) of the 1996 Act is general in its terms; it will depend on the facts and circumstances of the individual case but there may well be instances of a claimant’s conduct which contribute to a dismissal but are not specifically founded on by the employer as the reason for it. 

45.	Finally, we accept that the Tribunal erred in its assessment of uplift under s.31 of the 2002 Act in respect that it failed, when addressing the question of whether or not there were exceptional circumstances making it unjust to award an uplift (s.31(4) of the 2002 Act), to take account of the fact that the starting point was to recognise that the claimant had not written a letter that was a clear letter of appeal and had not intimated it timeously.  It also took into account an irrelevant fact, namely that the respondents had delayed in advising the claimant of his dismissal.  That delay did not have any impact on the compliance with the statutory procedure and the Tribunal does not explain why it was relevant to have regard to it when addressing this question. 

DISPOSAL 
46.	In the circumstances, we will pronounce an order upholding the appeal and dismissing the claim.