Appeal No.	EAT/1094/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 2000

Before
HIS HONOUR JUDGE WILCOX
MRS J M MATTHIAS
MR P M SMITH

MR W D GARNER	APPELLANT

SOUTH TYNESIDE HEALTH CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MR J FALKENSTEIN
(of Counsel)
Instructed by:
Messrs McKenzie Bell
Solicitors
19 John Street
Sunderland SR1 1JG	
For the Respondent	MR B HODGSON
Solicitor 
Instructed by:
Messrs Ward Hadaway
Solicitors
Sandgate House
102 Quayside
Newcastle upon Tyne NE1 3DX	

HIS HONOUR JUDGE WILCOX:

1.	This is an appeal against the decision of the Employment Tribunal sitting at Newcastle upon Tyne on 29 and 30 June.  The Appellant’s claim of unfair dismissal was held by the Tribunal to be unfounded.  It was observed by the Tribunal in the reasons given that the issue between the parties, essentially, was that the Applicant had been dismissed and that the reason for that dismissal was incapability, specifically the Applicant’s unacceptably high levels of sickness absence.  One starts with section 98 of the Employment Rights Act 1995: 
Section.98 (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 
and 
(b) that it is either a reason falling within sub section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee, holding the position which the employee held.  

2.	Sub section (a) presupposes that there may be more than one reason of course and the priority of reasons is a matter for the Tribunal.  There may be reasons having almost equal or parity of priority.  It is sometimes a difficulty that can confront the Tribunal.
Sub section (b) identifies some other substantial reason that is apart from those particularised in sub section (2), which reads: 
2. “The reason falls within this sub section if it- 
(a) it relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do.
(b) Relates to the conduct of the employee.
(c) Is that the employee was redundant, or
(d) Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.”
(c) (d) for these purposes do not really feature in this case.  

3.	It is clear that the Tribunal felt themselves constrained to label the reason for unfair dismissal in this case under 98 (2) (a) as ‘capability.’  The cases that relate to capability seem to fall into two types, on analysis.  Those that deal with a long term or chronic condition and those that relate to persistent absenteeism. The editor’s of Harvey when discussing incapability arising from ill health at paragraph 12 (49) includes the case of International Sports Company.Ltd v Thompson [1980] IRLR 340 cited in the course of this appeal and before the Tribunal as being a case relating to incapability, arising from ill health.  

4.	 The Tribunal found that the Applicant commenced employment for the Respondent on 23 July 1990.  He was employed at the time of his dismissal as a Maintenance Assistant in the Engineering Department, which is part of the larger estates department.  The reason for his employment having been terminated on 7 December 1998 was because of his unacceptably high levels of sickness absence.  It was found that the Respondent had a sickness absence policy, set out in a sickness absence procedure, defining procedures for dealing with short term sickness, involving warnings and invoking a disciplinary procedure and for dealing with long term sickness, which includes counselling and medical guidance in cases in which there is a long term health problem.  The Tribunal found that short term was usually regarded as absences for one month or less. The Tribunal found that the agreed procedure was a reasonable procedure.  

5.	We, of course, do observe that the South Tyneside Health Care Trust is a responsible large public body employer and that these procedures are normally agreed after careful negotiation between the employers and the Trade Union.  Neither in this appeal or in the Tribunal hearing was there criticism as to the fairness of the procedures laid down, in relation to absence, be it characterised either as long term or short term.  The operation of that procedure, of course in terms of the appeal, is brought into question.  The Tribunal made further findings. The Applicants’ record of sickness included the period from 16 December 1991 to 24 May 1994; where by the Applicant had been off sick for a period totalling 54½ days for a variety of reasons.  On 23 June 1994 he was issued with a first written warning under the procedure.  From 28 October 1994 to 29 November 1995, the Applicant had a 145 days absence, on account of pains in the hip. 

6.	He was suspended following his return to work. Under the procedure on 27 February, a disciplinary hearing was held, which was reconvened on 19 April 1996 after a medical report had been obtained, in order to ascertain whether his continued employment would have an adverse effect upon his health. After that hearing, he was given a final written warning, in accordance with the rules, that was expressed to last for some 18 months and he was told that further high levels of sickness absence would result in further and more serious disciplinary action, which could include dismissal.  

7.	Measures were put in place for the Applicants’ attendance to be reviewed periodically. The Applicant was required to submit a doctor’s certificate for every absence there after.  He did not appeal against that decision or in relation to any other subsequent disciplinary action.  In the period 7 November 1996 to 18 August 1997, the Applicant was sick for 87 days.  The Respondent decided to give the Applicant the benefit of the doubt, so expressed and found by the Tribunal. It issued a second final warning at a disciplinary hearing on 26 September 1997.  He was represented by his union the GMB and in the letter dated 26 September 1997 it was recorded that he was already subject to a final written warning and that his employer was being lenient in issuing him with a further and final written warning.  The letter ended emphasising that there would be no further warnings and stressing that the Applicant should improve his attendance record.  He was warned that if he did not reach the appropriate standard he would be dismissed.  

8.	It was found that the Respondent used as a bench mark the attendance record of other employees in the Estates Department; that being a department that had the worst attendance record of any department in the Respondent trust.  The Applicant, as found by the Tribunal had the worst attendance record of any of the Respondents employees.  He was subject to a performance review every three months. The average rate of sickness absence was 5% in the Estates Department.  In March 1996, the Appellant General Practitioner advised that he should seek advice in relation to his varicose veins.  He did so and was advised that he should have surgery for a varicose veins operation on one leg in December 1996.  He was absent from 3 December 1996 to 3 February 1997. The Tribunal found that he had taken off more time than was expected, in consequence of a postoperative infection.    

9.	The Applicant told his employer’s that he would have to take time off for treatment on the other leg.  He was subsequently absent from 17 April 1998 to 22 June 1998 for that second operation and sadly again, infection supervened and he was absent for 66 days, monitoring exercise was held on 30 June 1998 and he was warned about absences and future consequences.  On 15 October 1998 he was involved in a car accident and had suffered whiplash injuries.  He was off sick from 15 October until his dismissal in December.  It was found by the Tribunal that he had wanted to return to work, but his Doctor had insisted that he remain off work because he did not have full mobility of the neck and this would have affected his duties, particularly those involving the use of ladders.  He was required to attend a Doctor for a consultation and on 18 November 1998 Dr Muncaster advised: 
“I am unaware of any underlined medical problem or condition which would account for his high level of sickness absence.”

10.	That is of particular significance in this case, when one comes to characterise the sort of incapability that the Tribunal was looking at.  This is not a question of somebody with a condition like long standing back condition or a condition arising from heart disease or of a continuing nature, where there are clear procedures laid down such as counselling and assistance in, considering the future requirements of the Appellant in the light of a prognosis, founded upon medical evidence.  This was not such a case.  This was a case clearly, as was underlined by Dr Muncaster that did not arise from any underlying medical condition or problem.  These were a series of absences, over a period of time, from his employment on account of his health.  It is instructive to consider the finding of the Tribunal when they came to consider this aspect of the matter.  

11.	In the paragraph six as there is a finding that the absences of the Applicant were genuine in kind.  Not withstanding that the Applicant had not always followed the correct procedure.  It is clear from the finding of the Tribunal, that the absences were medically based and although he did not follow correct procedures, we find from reading the extended reasons that this was not held against him either by the Tribunal as by the Respondents.  This therefore was a state of affairs where over a period of time, there was intermittent persistent absenteeism.  

12.	The Tribunal by referring to Dr Muncasters’ evidence was considering the long term prognosis.  Implicitly, they must have found that the employers had taken every reasonable step, to investigate firstly, albeit that this was not strictly a question of an underlying medical condition or strict incapacity.  None the less, they went down that road.  So far as the procedure was concerned, the Applicant had been made aware by the warnings, that he must improve his attendance level.  The Respondent had followed a reasonable procedure.  The Respondent had acted reasonably in categorising the absences of the Applicant as short time, and primarily dealing with him under the Short Term Sickness Provision. His absences had been through a variety of reasons.  The Tribunal found that it was reasonable to interpret the long term sickness procedure, as one was applicable to a long term health problem in the sickness absence policy of February 1996. Only under that provision would it have been obligatory to seek further medical guidance on the prognosis.  

13.	They categorised the Appellant’s conduct as persistent absenteeism and in the second paragraph they found that as a reasonable employer, the employers were entitled to look at the pattern of absences on a statistical basis and were justified in concluding that ‘enough was enough.’  The particular matters of appeal, which are raised in the amended grounds of appeal allege: 
1)	Firstly, failure to give an adequate reasons.  Having concluded that the normal period of absence, defining an absence as long term, under the Respondents procedure of 4 weeks, the Tribunal have failed to give adequate reasons for its conclusion that the Respondent was acting reasonably in treating an absence of 66 days and a consecutive 53 absence as short term under its procedures.  
In looking at persistent absenteeism, it is clear to us that an employer is entitled to look at the employment history and in considering the more recent absences, prior to the bringing of the application, it is clear to us that they approached this matter on a reasonable basis, finding that 4 weeks is not light in stone as being an immutable criterion as to what is long or short term.  It is only a guide and it is usually followed.  
2)	Misdirection as to law.  The Tribunal erred in considering itself dealing with a persistent intermittent absence case, as categorised in International Sports Co. Ltd v Thompson [1980] IRLR 340.  This is a decision of long standing.  In that case it was argued before the Employment Appeals Tribunal that the Employment Tribunal that erred in holding that the Appellants had acted unreasonably in dismissing the Respondent employee for persistent sickness absence without carrying the procedure investigation and consultation required in cases of incapability, due to ill health. The employee there was a Tennis Racket Stringer employed by the Appellants. There was a code of disciplinary procedure, agreed with the trade unions; referring to classes of offences.  Class One: referred to serious misconduct. Class Two was a catch all provision:
“Unsatisfactory performance, attendance or conduct i.e. an offence which warrants reprimand by an official of the company which after repetition could leave to either suspension or where applicable, dismissal.” 	
The Tribunal regarded the conduct there, clearly that of persistent absenteeism, as falling within class Two namely a ‘conduct matter.’ 

The finding of the Employment Appeals Tribunal at paragraph 11 on page 341 in our judgment, was a reason related to the conduct of the Respondent.  They went on to say: 
“If this were to regarded as incorrect however, it would in our view, be some other substantial reason of a kind, such as to justify the dismissal of an employee holding the position which the Respondent held within the terms of s.57 (1) (b).
Some confusion may have been introduced into the case by the Appellant’s statement in their appearance, that the reason for dismissal was persistent absenteeism but we see no reason why any confusion should not have been dispelled at an early stage of the hearing.  We recognise that the word ‘absenteeism’ is often used in the pejorative of sense but it is also frequently used in Industry, simply to describe frequent absences as indeed wholly in this case as the Tribunal so found.  These being absences wholly based upon genuine health grounds.”  

13.	That decision is commented upon in the current edition of Harvey, not under conduct but under incapacity.  The true form of incapacity perhaps is exemplified in the case of Spencer v Paragon Wallpapers Ltd [1977] ICR 301.   The employee there was a reeler at the mill.  He had a back injury and it was not known when he was going to return.  The Personnel Officer spoke to the employee’s Doctor who told him that the employee would require a further four-six weeks rest before he was ready to assume work.  The Personnel Officer spoke again to the employee and explained that the Employers could not wait as long as 4-6 weeks before a return to work and by a letter of 6 November, there was a dismissal of the employee that led to a claim for unfair dismissal.  The relevant part of the judgment of  Phillips J at page 306 is at letter (G):
(G) “There is no doubt that the industrial tribunal directed their minds to the correct question in this case, and the answer which they gave to it is to be found in paragraph 17, 18 and 19 of their reasons.  They took into account 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, the circumstances of the case, and concluded that the employers had discharged the onus put upon them under paragraph 6 (8) of schedule 1 to the Act of 1974.”  

14.	In the Post Office v Wilson on 13 April 1999 Holland J…. on not dissimilar facts to the instant case make observations that perhaps, had they been known to counsel and the Tribunal below would have assisted the Tribunal in carrying out its primary task under s.98 to consider, whether the real reason was issue was incapability s.98 (2) (a) or the reason falling within 98 (1) (b) of the Employment Rights Act, that is some other substantial reason of a kind, such as to justify dismissal of an employee.  

15.	It seems to us on the facts as found by the Tribunal where there is no underlying medical condition and where persistent absenteeism is established, that the decision to describe the reason found in s.98 as that of ‘incapacity’ is open to some criticism.  In International Sports Co. Ltd v Thompson as long ago as 1980 such conduct was considered a ‘some other substantial reason.’  It appears to us that the analysis in Wilson is entirely appropriate to this species of case involving persistent absenteeism, where is no underlying chronic condition.  In this case, while there was genuine sickness the gravames of the complaint is the persistent intermittent absenteeism: 
“In a given case a dismissal under the procedure may have something to do with conduct. s.98 (2) (6) as something to do with capability s.98 (2) (9) but in all cases it has to do with absenteeism and the application of a uniform procedure for dealing with it, that is plainly some other substantial reason s.98 (1) (6).” 
When looking at s.98, how the Tribunal identifies which is the principal reason at the end of the day is a matter of mixed fact and law for the Tribunal.  We may take a different view of the factual element but we cannot say that this approach was a wrong view.  They looked at the question of persistent absenteeism and took a view as to capability. We are not prepared to say that they were in error although, as I have already indicated, we would prefer the sort of analysis followed in Wilson.  On the facts as found by the Tribunal the result would have been exactly the same i.e. a justified dismissal.  

16.	For those reasons therefore, we dismiss this appeal.