Appeal No. EAT/9/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 27th November 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR T S BATHO

	MR K GRAHAM CBE

BT CONSUMER ELECTRONICS LTD	APPELLANTS

1)  MRS P GINGELL
2)  MRS B A BULL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR TIMOTHY BRENNAN
(Of Counsel)
The Solicitors Office
British Telecom Centre
81 Newgate Street
London
EC1A 7AJ

For the Respondents	MR PHILIP T ANDERSON
(Solicitor)
Messrs Morgan Bruce
Solicitors
Bradley Court
Park Place
Cardiff
CF1 3DP

	MR JUSTICE WOOD (PRESIDENT):  This is an Appeal by BT Consumer Electronics Ltd a subsidiary Company of British Telecommunications against a Decision of an Industrial Tribunal given on the 13th October 1989 when sitting at Cardiff under the Chairmanship of Mr Owen David.  The Decision after three days of Hearing was that both the Applicants Mrs Patricia Gingell and Mrs Barbara Anne Bull were unfairly dismissed.  In respect of each of them the ground of unfairness was found to be procedural and in respect of Mrs Bull there was an additional finding that it was unfair that her employment should have been terminated whilst she was still entitled to some further weeks sick pay.

	The termination of Mrs Gingell's employment took place on the 21st December 1988 and Mrs Bull's on the 28th January 1989.

	The Company have a factory at Cwmbran where they manufacture and assemble telephone equipment.  Some 800 people are employed of whom 550 are members of the National Communications Trade Union.  It is light industrial work;  there is no heavy work and it is the sort of work that can be carried out by women.  There is occasional lifting of boxes but the weights concerned are not excessive for women to manage.

	Amongst other things the Respondents operated a sick pay scheme, and that was set out in the Staff Contract Manual.  The employees were entitled to sick pay at full rate for a period of six months followed by a further period of six months at half rate and if an employee was absent in aggregate for 12 months in any four years there was no entitlement to sick pay.  They also had an informal scheme where they paid a pension rate to those no longer entitled to sick pay.

	In paragraph 19 the Tribunal found as one of the reasons for finding the dismissal of Mrs Bull unfair that she should have been allowed to continue with her sick pay for another eight weeks.  When one looks at the sick pay provisions there is no contractual entitlement to it at all and there is, in our view, no duty to pay it if in fact an employee is not entitled to continue to be employed.  Both Industrial Members sitting with me think that there is no merit and no substance in that point and I respectfully agree with them, and we reject that as a finding which could be supported.  We turn therefore to the question of procedure.

	Each of these ladies had been absent from their work for a considerable period of time.  Mrs Gingell had been absent in 1985 for 121 days;  in 1986 for 71 days;  in 1987 for 116 days, followed by an absence from the 1st January to the 21st February and had further been absent from the 7th April 1988 until her last day of service which, as we have already indicated, was the 21st December 1988.

	Mrs Bull was absent for 33 days in 1987 and continuously from the 28th January 1988 until her last day of service on the 12th January 1989.  Each of them had substantial periods of service with the Respondents.

	There had been two arrangements which had been reached between the Trade Union and the Company which are relevant for this case.  The first was an arrangement to deal with what were called irregular attenders and secondly an arrangement for terminating service on medical grounds.  Those documents are before us and were before the Industrial Tribunal.  They stretch over some nine closely typed pages, much of it is simply guidance for those in management dealing with these problems.  They are, in our judgment, extremely complicated and do no particular credit to the draftsman on either side when one is seeking to find simplicity in industrial relations.  These are extremely complicated and we have found considerable difficulty, as we think did the Industrial Tribunal, in deciding precisely what was intended and meant.  The Industrial Members make those comments to try to encourage simplicity in any of these agreements.

	The bases of the two agreements are really the steps to be taken so as to be fair and to provide room for discussion at each stage in dealing with situations which require delicacy,  tact and understanding.  An irregular attender is defined as:
"those employees who incur excessive absences, the causes of which do not in themselves justify medical retirement, but which seriously impair the employee's ability to give satisfactory service."

The stages are four in number, first, an informal warning;  secondly, a formal warning;  thirdly, a formal letter giving an employee five days in which to show cause why his or her employment should not be terminated.  Then there was a hearing and finally, if there is a decision to dismiss or terminate, then that is the fourth stage and during that fourth stage if they decide to dismiss then there is the Notice and full rate of pay during Notice.

	The Medical Retirement Scheme also has various stages, but we do not need to recite each of those and it does allow in those stages to make application for help from the occupational health service.  The Chief Medical Officer has an opportunity of looking at the matter and finally an independent medical board.

	Under the details of the "Irregular Attenders" procedure we need refer to those paragraphs which start with paragraph 20 that provides, without reading it in detail, that an individual may be called for an interview and advised of his right or her right to be accompanied by a friend, then there must be a statement that termination may be considered, the facts and that there is five working days to show cause why not.  At the end of that subparagraph, which is paragraph 20(c), these words appear:
"The procedures for the termination of employment as outlined in paragraph 22 should be explained to the employee."

So that at that interview the procedures for termination are explained.  Turning to those procedures paragraph 22 provides for the hearing of the matter at the end of which a decision will be made;  paragraph 23 allows for an appeal and paragraphs 24, 25 and 26 deal with the hearing of that appeal.

	Turning back to paragraph 20 there is a fourth subparagraph (d) and there the procedure directs as follows:
d.  advice that there is a right, which must be exercised within 5 working days of this notification to appeal for retirement on medical grounds as an alternative to termination of services (see para.27).  That procedure and its consequences must be explained, emphasising that such an appeal cannot be considered unless medical evidence can be produced to support the claim.  The local personnel unit should be approached for the detail of the procedure and its consequences."

	Looking at that, and looking at the whole of the procedure, it seems to us quite clear that there is a further route which can be travelled by the employee who is warned that there is going to be a hearing to decide whether to terminate his employment, and that route is through an application for medical retirement.  Thus, looking at that procedure as a whole, one has this situation, there is a ladder of processes up to that warning given under paragraph 20;  thereafter the ways divide, there is the determination whether or not to terminate employment through paragraph 20(c), paragraph 22 and thereafter by way of appeal, paragraph 23.  The other fork in the road is the application to be considered for medical retirement.  That route, of course, lies to the question of a pension under the pension schemes and to a decision by the trustees of that scheme.  There is one other paragraph in the "Irregular Attenders" procedures to which we need refer in due course which is paragraph 27 and that, be it noted, has been mentioned already in paragraph 20(d).

	Turning to the procedure for medical retirement that sets out again a number of steps in the application.  The word "appeal" is used, whether it is strictly an appeal or an application is perhaps difficult for us to decide because it seems that if you are threatened with termination on medical grounds there will be an appeal, whereas if you are threatened with termination as being an irregular attender it is really an application, rather than an appeal.  That again may be something that needs looking at in due course.  However, the stages are set out and we need not go through them in detail.  We need only refer to the last paragraph in the procedures, which is on page 3 of that procedure and is numbered 8.1, that reads as follows:
"Where an employee is under notice of dismissal or has already been dismissed other than on medical grounds and he succeeds in an appeal for his services to be terminated on medical grounds, arrangements will be made to vary the terms of his notice accordingly."

So if he succeeds in his appeal then he will go on to pension arrangements, however, if he fails in his appeal or application for medical retirement then the provisions of paragraph 27 of the "Irregular Attenders" procedures applies, that reads as follows:
"If the employee applies for medical retirement this must be dealt with as quickly as possible in accordance with PI J115 and, if allowed, the employee will be retired on medical grounds."

that clearly refers to paragraph 8.1 of the medical retirement procedures
"If refused, the employee must be given further notification, referring back to that given under paragraph 20, advising the outcome of the request and allowing a further 5 working days to appeal against termination of employment.  This appeal may be conducted either in writing or by interview at which the appellant may be accompanied by a friend."

So that, where there has been a failure or a refusal on the application to retire on medical grounds, the procedure to be adopted is to revert to paragraph 20 and to slot in the future determination of the matter from paragraph 20.  That allows five days in which to provide reasons why the termination should not stand.  It may be that no termination has been decided upon but it may be, and we cannot see why it should not be, that there has been a determination to end the employment through the other route, through paragraph 22 and in this case that is what happened.  However, even if there has been such a determination, nevertheless if one has to read paragraphs 20 and 22 and the appeals therefrom as if that was a reconsideration of the decision to terminate the employment, it is only in that way that one can seek to make sense of these procedures.  Before going back to the facts of this particular case it does seem to us that consideration could be given to a rethink of the whole of those procedures without any injustice to either side.

	Turning back to the facts of the case, the Tribunal indicate that they accepted, or preferred the evidence of the Head of Personnel, Mrs Bailey and also made it clear that they did not think this Company was acting in any way improperly because they were trying to increase their workforce and they were not therefore looking for a reason to rid themselves of these two employees.  So it is against that background that they then go to consider this matter.  

	In Mrs Gingell's case, she was interviewed at that paragraph 20 interview, on the 30th August and told about her rights in the matter, her Trade Union wrote on the 6th September, saying that she was going to appeal against dismissal and also going to apply for the medical retirement, in fact by that stage there had been no question of her dismissal.  Her hearing was on the 29th September and on that date a letter was written which terminated her employment on the 21st December 1988.  The final decision rejecting her application for medical retirement was given on the 4th January 1989.  It was from that latter date therefore that under the procedure of paragraph 27 that she should have had her five days notice to determine whether or not that dismissal should stand in all the circumstances, and as Mr Brennan frankly conceded that was not done.  

	In the case of Mrs Bull she went through the paragraph 20 procedure on the 1st September and ultimately she received a letter on the 21st October terminating her employment on the 12th January 1989.  So that she also had been dismissed but when she was told that her medical application had been rejected on the 1st March 1989 she again was not given that five days notice that she could go back to the paragraph 20 procedure.

	As we see it therefore looking at these procedures, and with the help, which we gratefully acknowledge, from the Advocates before us on this matter, as we see it there was an error in the procedure at the end when the two ladies were told that their final medical board had been rejected because they did not thereafter have the opportunity under paragraph 27 and paragraph 30 to have their dismissals reviewed.

	The Industrial Tribunal dealt with their conclusions about the procedures in paragraph 17 starting in the middle of that paragraph they say this:
"In reality they [the applicants] could have pursued both remedies.  But not simultaneously.  Under paragraph 27 of the Irregular Attendance Procedure this was specifically allowed.  Unfortunately this sensible provision was overlooked by both the respondents and the union.  Though Mr Bater [the solicitor for the Company] did argue that once the application for medical retirement had been turned down at first instance the section was satisfied, we are quire sure that the effect of the paragraph is to allow the employee to appeal to the independent medical board before the respondents `implement' the dismissal procedure.  In neither of the cases that we are concerned with was this done."

Mr Brennan criticises that passage and indeed we agree and accept his criticism.  It seems to indicate that the employee was entitled to apply for medical retirement before any of the dismissal procedure could be implemented.  It is not at that juncture, as we see it, that there could be or was any deficiency in the way in which this matter was handled.  As was indicated in the earlier part of that passage both the Trade Union and the employers took the view that this was the correct way to approach the matter.

	The error in procedure, as we understand it now, is in that last failure to give those notices.  It follows from that rather lengthy dissertation on the procedures that we take the view that the Tribunal erred in its understanding and it is a question of construction of those documents and we do not accept that they could or did reach the conclusion that they were entitled to reach on a proper construction of those documents.

	What is the result therefore.  Clearly it is not for us to decide on the basis of Polkey v. A E Dayton Services Ltd [1988] ICR 142 and we bear in mind in particular a passage therefrom in a speech of the learned Lord Chancellor at page 153 D-G
"It is not for us to reach a decision when examining the error in procedure, it is for an industrial tribunal.

Secondly, it is clearly not for us to examine the question of compensation but it would seem a possibility here that it may be very short and that was indeed envisaged by the Tribunal themselves in paragraph 20 of their Decision, to which reference can, if necessary, be made.

	It follows therefore in this extremely complicated procedural matter that we have reached the conclusion that the appeal must be allowed and the matter remitted for a rehearing, which we hope in the light of this judgment may not be a very long one, it may be that the parties can reach agreement, and if they can we would encourage them so to do, it is always preferable.

	The Order will be Appeal allowed, remitted for a further hearing as directed by the learned Regional Chairman.