Appeal No.	EAT/0763/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 February 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS A MACKIE OBE
MR N D WILLIS

MR J G JOHNSON	APPELLANT

NISSAN MOTOR MANUFACTURING (UK) LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRSENTATION 
BY OR ON BEHALF OF
THE APPELLANT	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT):

1.	We have before us the preliminary hearing of the appeal of Mr J G Johnson in Johnson v Nissan Motor Manufacturing (UK) Limited.  It is now two minutes to 12 noon; nothing has been heard from Mr Johnson, the Appellant.  We have had no message suggesting that he has been delayed.  We have a discontinued telephone number for him but that, of course, affords no way of getting in touch with him and directory enquiries have been unable to provide us with any other number for him.  So in the circumstances we have to go forward doing the best we can with the paper that is laid before us and that discloses the story a follows.

2.	On the 15 November 1999 an IT1 was lodged by Mr Johnson for unfair dismissal.  He said;
“On 18 May 1999 I went on as sick at work due to occupational stress and anxiety.”

 The Respondent’s sickness arrangement are that staff are required to keep in touch daily or regularly be telephoning.
“In addition, I was asked to attend the Respondent’s premises for various meeting.  My illness became worse to the extent that my GP increased my medication and in addition prescribed sleeping tablets.  At this time I could not face the world and, in fact, did not open my mail.  Eventually on the 18 August 1999 the Respondent dismissed me from my employment on the basis that I had not complied with company sickness procedure.  I consider that this procedure is unfair and so my dismissal is unfair for people suffering from illnesses such as myself who are trying to recover as it is likely to aggravate matters rather than make them better.”

3.	On 16 December 1999, Nissan presented its IT3.  There had, said Nissan, been previous failures to adhere to the Nissan sickness policy.  They said that on Friday 14 May 1999, at the Applicant’s request, the Applicant’s supervisor issued him with a set of objectives.  On Monday 17 May 1999, the Applicant submitted a two week sick note for stress and was subsequently on sickness absence until August 1999, the time of his dismissal.  They said that in accordance with Nissan’s medical procedure the Applicant was asked to keep in regular contact with the company, to attend medical counselling meetings and to see Nissan’s occupational health consultant.  It is, however, denied that he was required as alleged to contact Nissan daily.  The IT3 in paragraph 9 said;

“In order to progress matters and try to resolve the Applicant’s situation, Nissan wrote to the Applicant attempting to arrange a further counselling meeting, initially for 23 July.  The Applicant failed to attend.  Further letters were sent on 26 July, 30 July and 10 August rescheduling the meeting but still the Applicant failed to attend or contact Nissan.  He was then warned that continuing this action would become a disciplinary issue.  On 12 August Nissan further wrote and informed the Applicant that he would be required to attend a disciplinary hearing to address his failure to carry out reasonable instructions.  This was set for 17 August.  He was informed of his right to have a representative present.”

4.	The alleged disciplinary processes were then set out by Nissan in its IT3 and at the foot they said;
“Accordingly it is averred that the Respondent acted reasonably in dismissing the Applicant and that in all the circumstances the dismissal was fair.”

Well, that was the state of attack and defence that went to the hearing at Newcastle-on-Tyne under the chairmanship of Mr P G Rennie.  The hearing was on 13 April 2000.   On the 11 May, the unanimous decision was sent to the parties and it was that the Applicant had been fairly dismissed and that his originating application was dismissed.  Mr Johnson had appeared at that hearing in person.  On the 20 June 2000, a Notice of Appeal was received from Mr Johnson.  On 17 November there was a first preliminary hearing at the Employment Appeal Tribunal.  Mr Johnson did not attend and the matter was adjourned generally.  

5.	The Employment Appeal Tribunal wrote to Mr Johnson.  Ms D Armstrong for the Registrar wrote;

“I refer to the above appeal listed for hearing today.  The Appeal Tribunal have adjourned the matter and direct that you do provide written reasons for your non-attendance at the hearing,  confirming your state of health and providing a medical certificate where possible/appropriate.  It would be of assistance to this Court if you would also confirm whether or not it your intention to pursue the Appeal.  Please let me have your reply within the next 21 days.”

On the 29 November, Mr Johnson wrote to confirm he did wish to pursue his appeal but without saying anything about his reasons for non-attendance on 17 November.  On 6 April 2000, Mr Johnson’s doctor set out Mr Johnson’s recent medical history but without indicating in writing why it was that Mr Johnson had not attended or whether or not he had been fit to attend the hearing on the 17 November.  On 18 November 2000, the doctor added;

“I have nothing too much to add to the previous report I made in April 2000.  He still has symptoms from his asthma and gets recurrent anxiety symptoms and poor sleep. “

6.	On 25 November, the doctor wrote:

“I can confirm that Mr Johnson has for many months found it difficult to cope with stressful situations and that this has a deleterious affect on his health.  I would therefore agree with him that it would be in his best interest to not attend the appeal in person.”

In the course of a very long and, as it seems to us, a scrupulously careful decision, the Tribunal at Newcastle found many facts which include the following which I hope are enough to give a flavour, although by no means the whole dish.  Thus in their paragraph 4(c) they say of Nissan;

“It has a recognised absence procedure which is summarised on a yellow card (R157), a copy of which is given to all employees on induction and thereafter from time to time.  Employees are required to telephone the appropriate manager or supervisor before the start of shift on the first day of absence and thereafter as instructed but normally at least weekly if absent for more than one week.  All sickness absence must be certificated, by the employee up to and including seven calendar days and thereafter by a General Practitioner.  Workers are informed that failure to comply with the procedures may result in a delay in sickness benefit and in disciplinary action.”

A little later in paragraph (e) they say:-

“Over the years the Applicant had a considerable number of absences due to illness, mostly for short periods and covered by self certification although there were also some medical certificates (R91-127).”	

Later still;

“As a result, on 2 September 1992 he was the subject of disciplinary proceedings in which he was given a first written warning (R133-134).  On 25 March 1993 he was formally counselled (R135) and at the end of a further disciplinary hearing on 4 November 1993 he was given a final written warning (R137-140).  He did not appeal against these sanctions.  In accordance with the Respondent’s disciplinary procedure, the latter warning expired after 5 years on 3 November 1998.”

A little later;

“At some point in the 12 months ended April 1997 the Applicant began to work in the bodyside zone.  The supervisor on his shift was and thereafter remained a Mr Vasey.”

Then the Tribunal continues:

“on the 8 December 1998, the Applicant was required to attend a disciplinary hearing before Mr Vasey and Mrs Devanney as a result of an allegation that the had deliberately emptied the contents of his nose down a side panel with which the next operative on the production line (a Mr Davies) had refused to deal.  On this occasion, the Applicant was represented by a Company Council member.  It may be that he had been suspended at some point.  Mr Vasey came to the conclusion that the allegation was proved and further that the Applicant’s act had been deliberate and a matter of gross misconduct.  He issued a further final written warning, the previous such warning having just expired.  The relevant letter dated 15 December 1998 (R8) noted that the Applicant was also advised “to consider (his) whole approach and attitude to work: your attendance, timekeeping, quality and attitude” and that this incident had been “another example of your negative and unreliable attitude to work” which had to be improved”

7.	Going further into the Tribunal’s decision they said:

“On Monday 17 May 1999, the Applicant reported for work but very shortly afterwards left to see his General Practitioner and never returned.  That same day, the General Practitioner issued a medical certificate (R118-119) which advised him to refrain from work for two weeks as a result of stress.  That was followed by a number of other certificates, the first of two weeks and the others for four and six weeks respectively.  There has never been any doubt that by this stage the Applicant was suffering stress and anxiety.”

Then Mrs Devanney, the Personnel Controller enters the scene.  The Tribunal says:-

“she decided to arrange for the Applicant to consult a Dr Wollaston, one of the doctors who – by virtue of an agreement between their employer and the company – visited the plant each day on a rota basis”.

There were then series of meetings.  There is a note of a meeting that lasted some fifty minutes at which, the Tribunal said;

“The Applicant made it clear that he would come back to work when he felt ready but that he would not work under Mr Vasey unless there was no other option.”

Later still the Tribunal said: -

“Indeed it was apparent that he determined and remained determined to be uncooperative.”

8.	Then there are some findings in relation to the possibility of representation of Mr Johnson which are not insignificant because one of the points that Mr Johnson makes is in relation to the difficulties or impossibility of getting representation.  The Tribunal said: -

“On this occasion the Applicant attended the meeting.  He did so without a representative.  Mrs Devanney’s notes were at (R43-45).  At the start he said that he wanted an adjournment because his representative Mr Connolly (a lay official of the AEEU, albeit that the Applicant did not belong to that organisation) was unable to be present.  It transpired that the Applicant had first spoken to Mr Connolly about the hearing some 2.5 hours earlier.  The Applicant claimed to have been trying to make contact with Mr Connolly for some days although that was doubtful.”

The Tribunal continued;

“At one point, he became extremely aggressive and shouted at Mr Forster whom he accused of shouting and staring at him.  Nevertheless, having carefully explained matters to the Applicant, Mrs Devanney and Mr Forster gave him the benefit of the doubt in relation to his attempts to contact his representative and adjourned the meeting to 9pm on the following day.  The Applicant then referred to a formal written grievance, a copy of which (R71-76) he had brought with him.  When Mr Forster suggested that he lodge that through his representative, the Applicant said that he did not want representation in that regard.”

9.	Speaking of Nissan’s reaction to a series of meetings, the Tribunal said: -

“They came to the conclusion that throughout this period of some 5 weeks the Applicant had been deliberately obstructive, refusing to co-operate with them.  They accepted that he had been suffering from stress but considered that this did not excuse or explain his steadied refusal to communicate or take any steps to resolve the problem.  As Mrs Devanney put it to us, they decided that the Applicant had been leading them “a right dance”.  They debated the appropriate sanction.  They gave thought to the possibility that they could return to the position as it had been some 5 weeks earlier and try to resolve the problem.  They decided that there was no reason to believe that the Applicant would behave any differently in the future and that the likelihood was that he would continue to be wholly uncooperative.  In their view, this was a very serious matter.  They took account of the fact that he was already in receipt of a final written warning for an incident of gross misconduct, albeit that it was different in nature.  That warning had been given only some 8 months earlier.  They concluded that, given the background to the matter, the appropriate penalty was dismissal.”

The Applicant submitted a notice of appeal.  The Tribunal said:

“The Applicant had difficulty in articulating his complaints but Mr Gillespie was able to extract the information and list ten particular allegations.”

And after very full consideration of matter the Tribunal said: -

“We consider the Applicant’s complaint on the basis of these findings of fact.  We first turned to the reason for his dismissal.  It was for the Respondent to establish that reason and further that it fell within one of the categories in Section 98 of the Employment Rights Act 1996.  The Respondent maintained that the Applicant had been dismissed because Mrs Devanney and Mr Forster had genuinely formed the belief that he had wilfully refused to obey repeated instructions that he contact and have meetings with them, thereby refusing to take any steps to resolve the problems which had arisen and indicating that he no longer wished to continue in his employment.  We were entirely satisfied that that had been the reason.”

A little later, the Tribunal adds: -

“They genuinely concluded that the Applicant had deliberately ignored all their efforts whilst at the same time saying that he was prepared to try to resolve the situation.  That was a matter which “related to the employee’s conduct” within the meaning of Section 98 (2) of the Act.  Accordingly, the Respondent had satisfied the burden placed upon it.”

10.	They then directed themselves on the law.  We detect no error in what they say on that subject.  In their paragraph 7 they say: -

“The Respondent was contractually entitled to instruct the Applicant to make contact and to attend the various meetings: the right to do so was part of the sickness absence procedure which itself formed part of the Applicant’s contract.  Moreover, the instructions issued by Mrs Devanney and Mr Forster were eminently reasonable.  If at any stage they had been advised that, as a contact or meetings then the position might have been different.  Having said that, if there had been such an indication, then in our judgment the instructions would not have been issued.  It had been made clear to Mrs Devanney and Mr Forster that the Applicant’s problem was essentially a managerial issue so that they had to do something about it.”

In their paragraph 8 they say: -

“In our view, Mrs Devanney and Mr Forster carried out a reasonable investigation of the Applicant’s conduct and his apparent reasons for it.  That included giving him a reasonable opportunity to explain his position and extended to an adjournment when – despite some indication that this was a further example of obstructiveness – he wanted the facility of representation.”

And in their paragraph 9 they say: -

“Mr Forster and Mrs Devanney had come to the reasonable conclusion that the Applicant had wilfully and persistently refused to obey a reasonable instruction and indeed that he had no intention of returning to work for the company.  Some employers might have given him one last chance and tried yet again to arrange a meeting to discuss a possible solution to the problem.  However, given the conclusion to which they had come, their decision not to do that was reasonable.  The Applicant had already received a final written warning and that only some 8 months earlier.  Bearing in mind all the circumstances, we could not say that it was unreasonable for the Respondent to have responded to its own findings by dismissing the Applicant.”

11.	Well, that, as we say, was part of a very thorough enquiry into the matter by the Employment Tribunal and it is set out at length and in detail, as the citations will have shown.  Although Mr Johnson’s hand-written notice of appeal is relatively long and although we have carefully examined it, we have to remind him that the Employment Appeal Tribunal is only concerned with errors of law.  It does not allow a re-opening of fact, nor of course, does it suffice for an Appellant to say that lies had been told below or something of that order.  The evaluation of evidence and, in particular, the relative weight to be attached to different passages of evidence is essentially a matter for the Tribunal below.

12.	We have not been able to discern within Mr Johnson’s notice of appeal any allegation, which, in fact, is an allegation of error of law.  We have not been able to find any such thing.  Mr Johnson’s argument that he was not allowed representation, which is a point that he does make, is belied by the Employment Tribunal’s findings that we have already quoted.  Indeed there was one instance where there was expressly an adjournment in order that he should be able to obtain representation.  It is plain from the writing that we have from Mr Johnson that he feels strongly about the case but we find ourselves quite unable to identify an error of law, even an arguable error of law.  Whether, if Mr Johnson had attended, he would have pointed us to one, we rather doubt because his notice of appeal is relatively full and, as we say, does not disclose an error of law or an allegation of an error of law, but, doing the best we can to find such error, we find none even to be arguable and accordingly we must dismiss the appeal even at this preliminary stage.