Appeal No. EAT/246/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 November 1994

	Before

	HIS HONOUR JUDGE BULL QC

	MR L D COWAN

	MS D WARWICK

BRITISH TELECOMMUNICATIONS PLC	APPELLANT

MRS J B A CASH	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P GREENING
(OF COUNSEL)
BT Group Legal Services
BT Centre
81 Newgate Street
LONDON EC1A 7AJ

For the Respondents	MR MURRAY CREED
(OF COUNSEL)
Messrs Coley & Tilley
Neville House
Waterloo Street
BIRMINGHAM
B2 5UF

HIS HONOUR JUDGE BULL QC             This is an appeal from the decision of an Industrial Tribunal sitting at Birmingham on 6th November 1992, the Full Reasons having been sent to the parties on 11th February 1993.  The Industrial Tribunal upheld a complaint by Mrs June Cash that she had been unfairly dismissed.

	Mrs Cash was employed by the Respondents, British Telecommunications Plc as an engineering labourer from 8th August 1977 to 20th November 1991, when she was dismissed for, as the Industrial Tribunal found, "irregular attendance", her record demonstrating "an extremely poor attendance record".  The Industrial Tribunal set out the history of the Appellant's attendance record in paragraph 14 of their Reasons:

		"The tribunal were quite satisfied that the applicant had an extremely poor attendance record which had persisted from the time that she had first started working for the respondent.  From the computer analysis provided by the respondent it was apparent that since 1980 the applicant had been absent for a large number of days through most years in the period with the conspicuous exception of 1988 when the consequences of the final warning following the disciplinary interview in February 1988 had been to "reduce" unauthorised absence to 2 days in that year.  This clearly demonstrated to the tribunal that the applicant had been able to respond to disciplinary warnings.  However, it was also apparent to the tribunal that during 1989 and 1990 the applicant's absence of 190 days in 1989 and 217 days in 1990 were the highest absence record by far of the applicant and were clearly going to cause considerable difficulties to the respondent.  It was not surprising that disciplinary action had been initiated.  Had that disciplinary action regarding the absence of the applicant been concluded early in 1991, then it would have been difficult for the tribunal to find any reason not to uphold the decision reached by the respondent.  However, the consequences of the decision to defer the disciplinary proceedings from February until May 1991 and for there to be no hearing until August 1991, meant that there was then a reasonably long period during which the performance of the applicant could be assessed in relative terms to the very poor picture that had been painted in 1990."

	The Industrial Tribunal then continued the chronology and reached their conclusions in paragraphs 15 and 16:
		"15  The concern of the managers conducting the disciplinary hearings had been the fact that the applicant had had such a sustained history of poor and irregular attendance and that her credibility in suggesting that she could improve on matters was open to doubt to such an extent that neither of the managers involved in the disciplinary proceedings were prepared to concede that the applicant might be able to sustain an improvement over any length of time.  However, by the time that the matter came for hearing by Mr Mayall, the applicant had been able to demonstrate from February 1991 that she was able to attend for months at a time without there being any absence.  Furthermore, by the time that appeal came on for hearing in October 1991 there had been an even greater period during which there had apparently only been the one absence on the 8 October which was explained at the appeal hearing by the applicant's representative.  It does appear to the tribunal that there was manifestly clear evidence to the managers dealing with the disciplinary proceedings that the applicant was demonstrating throughout most of 1991 a profound willingness to attend on a regular basis and to try to avoid the disciplinary proceedings being brought to a conclusion resulting in the termination of the applicant's contract of employment.  For the managers therefore to conclude that there was no basis to believe that the applicant was able to sustain an improvement and for them to describe that as Mr Howarth did as conjecture appears to the tribunal to fly in the face of the factual evidence that was available to them.  It would have been fair to the applicant and to the respondent if the disciplinary action had started at the 5 day letter stage and continued at that point.  If the applicant failed to maintain her improvement, dismissal would have been the consequence.

		16  In the view of the tribunal, the rejection of this evidence was unreasonable to such an extent that no reasonable employer would have arrived at such a conclusion.  Consequently the tribunal conclude that the dismissal of the applicant in these circumstances was unfair. ..."

	The main complaint which is made is that this Industrial Tribunal erred in law in substituting its own view of the facts for that of the employers, and further made an error in law in failing to consider whether in accordance with equity and the substantial merits of the case, this employer's response fell outside the range of permissible options to a reasonable employer.

	Although there was some debate as to the reason for the dismissal of Mrs Cash, whether it related to her capability or "a reason amounting to some other substantial reason of a kind such as to justify her dismissal", that she had been dismissed was plain.  Whether she was or was not unfairly dismissed turned upon the answer given by the Industrial Tribunal to the question which arose in considering S.57(3) of the Employment Protection (Consolidation) Act 1978, as amended, namely:
		"(3)  Where the employer has fulfilled the requirements of subsection (1) then ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in the accordance with equity and the substantial merits of the case."

	As Lord Donaldson of Lemington M.R. in Piggott Bros & Co Ltd v. Jackson and Ors [1992] ICR 85 at 89B observed:
		"This must be amongst the commonest, and probably is the most common, issue which falls to be decided by industrial tribunals.  This is not to say that resolving it is always easy.  It calls first for an examination of the employee's conduct and an evaluation of that conduct in the light of circumstances as they existed or as the employee reasonably thought or feared that they existed.  Having decided where the employee's conduct fell within a spectrum beginning with the wholly reasonable and ending with the wholly unreasonable, the industrial tribunal then has to evaluate the employer's reaction to that conduct and ask itself whether in accordance with equity and the substantial merits of the case the employer acted reasonably or unreasonably in treating the employee's conduct as a sufficient reason for dismissing him or her."

	No suggestion is made in this case that the Appellant was malingering, and the history of her intermittent illnesses as set out in the computer sheets in the Respondent's bundle is not in dispute.  The issue is whether this Industrial Tribunal stood back and asked itself the question whether, in all the circumstances of the case the reaction of this employer to dismiss fell within the range of reasonable responses which a reasonable employer bearing in mind the test under S.57(3).

	Undoubtedly the approach of any employer to a case such as this which is one of genuine intermittent illness, will be one of sympathy, understanding and compassion as Wood J. pointed out in Lynock v. Cereal Packaging Ltd [1988] ICR 670 at 672A.

	It is suggested to us that paragraphs 14 and 15 of the Reasons are passages of analysis only leading to the conclusion which is set out at paragraph 16.  We have been driven to the conclusion that as they are drafted, paragraphs 14 and 15 indicate that the Industrial Tribunal was indeed substituting its own view for that of the employer and failed to evaluate the employer's reaction to that conduct in the following passages:
		..."Had that disciplinary action regarding the absence of the applicant being concluded early in 1991, then it would have been difficult for the tribunal to find any reason not to uphold the decision reached by the respondent. ..."
		"...For the managers therefore to conclude that there was no basis to believe that the applicant was able to sustain an improvement and for them to describe that as Mr Howarth did as conjecture appears to the tribunal to fly in the face of the factual evidence that was available to them."
		"...It would have been fair to the applicant and to the respondent if the disciplinary action had started at the 5 day letter stage and continued at that point.  If the applicant failed to maintain her improvement, dismissal would have been the consequence."

	We bear fully in mind the view expressed by the Tribunal in paragraph 16, but in our judgment that expression of view cannot cure the error of approach indicated in paragraphs 14 and 15.  It follows therefore that this appeal must be allowed and remitted to a differently constituted Tribunal for a rehearing.