THE INDUSTRIAL TRIBUNALS 

CASE REF:    1448/13    

CLAIMANT:	Jurijs Rulovs

RESPONDENT:	Re-gen Waste Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the tribunal also upholds the claimant's claim in respect of notice pay.

Constitution of Tribunal:

Chairman:	Mr J V Leonard

Members:	Mr B Heaney 
	Mr B Schofield

Interpreter:	Mrs S McGuigan

Appearances:

The claimant appeared and represented himself (by means of an interpreter).

Mrs M Lavery of the respondent company appeared for the respondent.

REASONS

1.	By claim dated 5 August 2013 and received by the Office of the Tribunal on 6 August 2013, the claimant claimed against the respondent unfair dismissal and notice pay.  By response dated 6 September 2013 and received by the Office of the Tribunal on that date, the respondent confirmed that the claimant had been an employee of the respondent and stated that the claimant had been dismissed from employment on grounds of poor work performance and short-term persistent sickness.  At the commencement of the oral hearing, the tribunal established with the claimant that, as far as he was concerned, the claimant had a relatively good understanding of both spoken and written English.  However, the assistance of an interpreter was provided and the hearing was conducted by the tribunal with the proceedings fully translated by the interpreter for the benefit of the claimant’s full comprehension of matters.  The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Mrs Martina Lavery, an employee of the respondent responsible for Human Resources.  The tribunal also was provided with documentation in the form of agreed bundles of documents.  On the basis of the evidence, the tribunal established material facts in order to determine whether or not the claimant’s claims were well-founded.  The tribunal did not have sufficient evidence available in order to determine fully the matter of remedy, in respect of which further information and evidence is needed.  This decision is accordingly confined to the matter of liability only, for that reason.

THE TRIBUNAL’S FINDINGS OF FACT

2.	In consequence of the oral and documentary evidence before it, upon the balance of probabilities the tribunal made material findings of fact as follows:-

2.1	The respondent is a limited company that operates a commercial recycling operation from premises located in Newry, County Down.  Part of this operation involves a system whereby a number of operatives, about seven or eight persons working at any one time, are tasked with picking various recyclable items off a conveyor belt.  These items are then appropriately stored and packed and, as the tribunal understands it, the resultant packed product is then exported in order to generate a commercial profit for the respondent.  The respondent has a substantial workforce, as the work is quite labour-intensive. 

2.2	The claimant, who is Latvian, commenced employment with the respondent on 4 August 2011.  On 10 August 2011 the respondent provided to the claimant a copy of the respondent’s “Employee Handbook” (referred to hereafter as “the Handbook”).  There was also a separate document, called “Contract of Employment, Plant Operatives”, relating to the claimant’s employment (referred to hereafter as “the Contract Statement”).  That Contract Statement was signed by the claimant on 10 August 2011; however a copy was not provided to him, but rather only a copy of the Handbook.  The Handbook, amongst other matters, provided for a sickness absence policy.  That policy is set out at pages 13 and 14 of the Handbook.  The Handbook also specified a disciplinary procedure which is stated at pages 15-17 of the Handbook. 

2.3	These written terms set out in the Handbook expressly state, at the start of the disciplinary procedure section, that this specified procedure is not intended to be contractual and that it does not form part of the employee’s contract of employment.  Notwithstanding this, the claimant’s Contract Statement, at Clause 10, refers to absence from work and sickness and that expressly is referenced to the provisions of the “staff handbook”, that of course being the Handbook.  At Clause 13 the Contract Statement refers to the Disciplinary and Grievance Procedures that are set forth in the “staff handbook” (i.e. the Handbook).  Whilst the Handbook provisions relating to disciplinary procedure are expressed not to form part of the employment contract, nonetheless it is to be noted that these provisions in the Handbook are expressly referenced in the Contract Statement and accordingly that latter cannot be read and interpreted in any meaningful way without also referring to the Handbook. 

2.4	At no time throughout the course of the employment was the claimant ever provided with a copy of his Contract Statement; a copy of that was not provided to the claimant until after the employment had come to an end.  The initial contractual remuneration stated in the Contract Statement was £5.95 per hour. This increased at some point (possibly coinciding with the increase in the National Minimum Wage) to £6.19 per hour.  The tribunal endeavoured to assess from the documentary and the oral evidence the length of the normal working week.  Whilst the respondent endeavoured to suggest to the tribunal in evidence provided by Mrs Lavery that the typical working week was 37 hours, upon further close examination by the tribunal of the documentation provided in evidence, that appears to indicate that a typical working week for the claimant was indeed well in excess of 50 hours per week and work was conducted over six days in the week.  Accordingly, in view of the apparent disparity between the oral evidence and the situation which apparently prevailed as revealed in the documentation, which was closely inspected after conclusion of the oral hearing, further information and evidence is needed in order to clarify matters for the purposes of remedy in the case.  That, however, does not directly concern the issue of liability, which issue the tribunal can determine in this decision.

2.5	The claimant’s assigned duties involved “picking” items from a conveyor belt.  This picking work was measured by the respondent to assess work efficiency.  The picking rate in regard to various recyclable items and categories was itemised and recorded by a system devised by the respondent.  The respondent’s management appears to have had an issue of concern relating to the claimant’s efficiency and work performance.  The claimant was summoned to a disciplinary meeting held on 1 February 2013.  On that occasion the claimant was given a written warning by his supervisor, Lukasz Karpiel.  This sanction was confirmed by Mr Karpiel to the claimant in a letter dated 1 February 2013.  In Mr Karpiel’s letter the unsatisfactory performance was defined as “poor picking efficiency”.  A warning was recorded that the claimant’s performance needed to improve immediately.  It was indicated that the likely consequence of further misconduct or insufficient improvement was a final written warning or dismissal if there were to be no signs of improvement.  The claimant was given an opportunity to appeal this sanction, but he did not do so.

2.6	Mrs Lavery gave evidence to the tribunal concerning information relayed to her by middle management that the claimant had received three verbal warnings.  She stated to the tribunal that the claimant had received verbal warnings on, respectively, 1 October 2012, 18 October 2012 and 12 November 2012.  Mrs Lavery stated that she had not personally administered these warnings; nonetheless she stated that she had been informed that these warnings had been administered to the claimant by a supervisor named Rafal Pomsis (who is now it appears the respondent’s Production Manager).  

2.7 	For his part, the claimant vehemently denied in his evidence that any verbal warnings had been administered to him, as suggested by Mrs Lavery.  It is to be noted that Stage Two of the respondent’s Disciplinary Procedure as set out in the Handbook states that, following a disciplinary meeting, the affected employee shall be informed of the company’s decision in writing and shall be notified of his or her right to appeal against the decision.  Nonetheless, in respect of any "verbal warnings" that might have been administered to the claimant, there was no documentary evidence confirming that this procedure stated in the Handbook was followed by the respondent.  The tribunal was shown some documentation consisting of what purported to be a photocopied extract of a diary entry for 12 November 2012.  In that document the words appear: “I gave him a verbal warning, I also explain him that if he is going happened again we will have to start formal disciplinary procedure against him”.  The author of that writing was not identified.  The original diary was not produced for inspection by the tribunal nor was the author called to prove the provenance of the document.  Accordingly, in the face of the claimant’s vehement denial, the tribunal attached little weight to this document.  The tribunal prefers the evidence of the claimant who strenuously denied that he had ever received anything that would properly constitute a verbal warning.  This was certainly so in regard to anything of sufficient formality such as might have alerted him to the disciplinary significance of any such.  The tribunal also noted that the stated dates of the first two of these purported verbal warnings (1 October 2012 and 18 October 2012) occur at the very start and at the very end of a specific period of fifteen days when the claimant was absent from work and was certified as being sick by a medical practitioner.  Accordingly the tribunal’s conclusion of fact is that the claimant was only subject to one formal disciplinary process in advance of the proceedings which led to the dismissal, this being the process the outcome of which was confirmed by letter dated 1 February 2013.

2.8  	Mrs Lavery was appointed by the respondent to fulfil a Human Resources function in the early part of 2013.  It appears that the respondent company at that stage began to revisit the topic of sickness absence.  The claimant’s short-term sickness absence record appears to have given some cause for concern.  This issue, together with work performance, resulted in a decision being made by the respondent to summon the claimant to a disciplinary meeting. This was done by letter from Mrs Lavery handed to the claimant dated 10 May 2013 scheduling a disciplinary meeting for 13 May 2013.  It was stated in the letter that the disciplinary procedure was being invoked in regard to, firstly, “Poor Picking Efficiency” and, secondly, “Persistent Short Term Sickness”.  The letter afforded to the claimant the right to be accompanied by a fellow employee or trade union official and also stated expressly that the outcome of the meeting could be the termination of the claimant’s employment with the respondent.  No other information or documentation was provided to the claimant in advance of the meeting. 

2.9	The claimant attended the disciplinary meeting on 13 May 2013. The meeting was also attended by Mrs Lavery and by Mr Maris Prijecis who acted as interpreter.  Notwithstanding raising some issues about the quality of the interpretation provided, the claimant did concede to the tribunal that he understood the import of what was discussed at the meeting.  At this meeting, the claimant was provided with some documentation.  As the tribunal understands it there were notes taken at the meeting.  Regrettably any such note as might have been taken was not made available to the tribunal.  Accordingly, the tribunal was reliant upon the somewhat sparse detail provided in the oral evidence of Mrs Lavery and that of the claimant concerning what precisely did transpire during the course of the meeting.  

2.10	Mrs Lavery stated to the tribunal in evidence that the claimant was provided with sufficient documentary evidence to assist in his understanding of the disciplinary charges made against him and with proof of his poor picking performance and of his unsatisfactory sickness absence record.  The claimant, however, was at pains to highlight to the tribunal that he had not been provided (at any point prior to the commencement of these tribunal proceedings) with one specific document.  This was a document inspected by the tribunal which purports to demonstrate that, whilst the employee average for picks per minute in this job was 46.46, the claimant’s own average was 29.77.  The claimant was insistent that he had not been provided with a copy of that document at the disciplinary meeting.  The tribunal finds the claimant's evidence to be credible in that respect and the tribunal finds that this key document upon which the respondent sought to rely was not provided to the claimant at the disciplinary meeting. 

2.11	The claimant was certainly provided at the disciplinary meeting with some information.  The specific information provided to him appears to have been sufficient for the claimant, a short time afterwards, to include in a written letter of appeal from the disciplinary sanction, that he had calculated his pick average to be, in the period between February and May (2013), an average of 36.2 picks per minute which he claimed was above the average recommended 35 picks.  For this reason, whilst the tribunal certainly has specific reservations about the respondent placing reliance upon documentation which was not provided to the claimant in the course of the meeting, this is not a case where no information whatsoever was provided to the claimant in order to enable him to understand at least part of the evidence against him.  Having said that, no explanation was provided by the respondent's witness why that specific statistical information regarding work performance was not provided to the claimant nor indeed why there was no endeavour made to provide any evidence or information to the claimant in advance of the disciplinary meeting in order to enable the claimant properly to prepare for the meeting.  Again, it must be emphasised that here is a case where the employer sought to rely upon specific sickness absence records and statistical information regarding picking and work performance in comparison to other operatives.  It would be difficult for any person, faced for the first time with this type of detailed information, properly to address the figures and statistics and consequently to deal with any disciplinary issues arising from the detail of the information, without having been first afforded a proper and reasonable opportunity to examine and digest any such information and perhaps, if the employee wished to do that, to endeavour to secure additional information properly to deal with the case being made by the employer against the affected employee.  

2.12	Apart from the picking performance, the disciplinary meeting also addressed the claimant's sickness absence.  There was produced in evidence a document entitled “Summary of Sick Record – Mr Juris Rulovs”.  This covered the period from 1 October 2012 to 14 April 2013.  The claimant vehemently denied ever receiving that document prior to his taking these tribunal proceedings.  The tribunal finds the claimant's evidence to be credible in this respect.  In the course of this hearing, nonetheless, the claimant did not specifically challenge the accuracy of the information mentioned in that the document.  Accordingly, the tribunal accepts the work absence information therein provided as being accurate.  The tribunal noted that there were seven periods of sickness absence in total mentioned in that document.  The first of these was for 15 days from 1 October to 18 October 2012.  Then followed two two-day periods of absence on a Friday and a Saturday, one being on 9 and 10 November and one being on 14 and 15 December 2012.  One day’s absence then occurred on 26 February 2013 and there was one day's absence on 25 March 2013 (in the documentation described erroneously as being “2012”).  This latter was apparently when the claimant had left his shift early. There was then mentioned (out of sequence) one day’s absence on 29 November 2012.  This was then followed by one period of 7 days’ absence, commencing on 8 April 2013 and ending on 13 April 2013.  It was not correct to say, as was suggested by Mrs Lavery in her evidence, that there was a preponderance of “weekend absence”.  The bulk of the 28 days of recorded sickness absence throughout the period from the commencement of October 2012 until 
mid-April 2013 arose from the period of 15 days absence occurring in October 2012 and the seven days of absence in April 2013.  These longer-term absences are understood to have been certified by a medical practitioner under the required procedure.

2.13	After the conclusion of the disciplinary meeting held on 13 May 2013, Mrs Lavery discussed what had transpired at the meeting with the Production Manager, Rafal Pomsis, and then with the respondent's Managing Director, Mr Joseph Doherty.  Mrs Lavery in her evidence made it clear to the tribunal that it was Mr Doherty who made the ultimate decision to dismiss the claimant after the disciplinary meeting had concluded.  She was forthright about that fact in her evidence and in no doubt about the role played by Mr Doherty.  A letter dated 14 May 2013 signed by Mrs Lavery was sent to the claimant, confirming the outcome of the disciplinary meeting as being a dismissal.  The reasons for the dismissal were stated as being that picking efficiency had not improved since the previous written warning and the matter of persistent short-term sickness.  (It is to be noted that the letter did not expressly refer to any other disciplinary warnings such as had been asserted by Mrs Lavery in her evidence to this tribunal).  Mrs Lavery explained to the tribunal that she felt that the respondent company had no alternative but to dismiss the claimant and indeed she expressed the opinion that the respondent had been more than fair to the claimant.  The claimant was consequently summarily dismissed, without notice or pay in lieu of notice.

2.14	When questioned in reference to the various categorisations of misconduct in the Handbook “Disciplinary Procedure” – “Minor” (which expressly included as examples, “careless work” or “poor effort at work”), “Major” (which expressly included “absenteeism without explanation”), or “Gross” (which expressly referred to offences “so serious that an employee who commits them will normally be summarily dismissed...”), Mrs Lavery stated that she could not discern how the misconduct charges levelled against the claimant could be seen as anything other than “gross misconduct”. In her explanation of this ascribed categorisation, Mrs Lavery alluded to picking inefficiency as being so serious an issue that financial loss was incurred by the respondent by batches of product having to be returned.  However, the tribunal noted that the issue that exercised the respondent appears to have been the speed of work rate in regard to the claimant's performance.  It was further noted that a number of workers worked on the picking line all at the same time (as the tribunal understands it about seven or eight workers at any one time); there was no evidence that the claimant’s own picking efficiency, of itself, had in any way been the sole, the main, or indeed any material contributory cause whatsoever of any batches of product having to be returned.

2.15	The claimant exercised the right of appeal against the dismissal.  An appeal meeting was held on 4 June 2013.  This meeting was chaired by Mr John Murphy, the respondent’s Logistics Manager.  Again, regrettably, although a note taker is believed to have been present, no notes or minutes of this appeal meeting were made available to the tribunal.  Thereby, the tribunal was deprived of any detailed contemporaneous recorded account of what might have transpired other than such as was available from the somewhat sparse evidence of the claimant.  The only witness representing the respondent, Mrs Lavery, was not in attendance at the appeal meeting.  From his evidence, the claimant at this appeal meeting raised with Mr Murphy a number of issues.  These included the assertion that the claimant's picking performance had indeed actually improved.  The claimant also provided an explanation for the various instances of sickness absence.  The tribunal has no indication whatsoever of the degree of consideration or attention that Mr Murphy might have given to any of these issues raised by the claimant.  However, one thing is entirely clear.  From the evidence of Mrs Lavery, Mr Murphy discussed what transpired at the disciplinary appeal meeting with Mr Doherty.  The ultimate decision-maker of the outcome of this appeal, as far as Mrs Lavery was concerned, was certainly Mr Doherty.  In the absence of any other evidence or information, the tribunal accepts that this was the case and that it was Mr Doherty who made the final decision in respect of the appeal.  Rather than give detailed reasons for the outcome of the appeal, by letter dated 10 June 2013 Mr Doherty confirmed to the claimant that the decision taken by Mr Murphy who had conducted the appeal was that the decision to terminate the claimant’s employment still applied.  Thereby Mr Doherty appears to have suggested that it was Mr Murphy's decision.  However, the reality, in accordance with Mrs Lavery's evidence, was that it was Mr Doherty who made the decision to uphold the termination of employment in consequence of the appeal. 

2.16	The tribunal does not need to record any further findings of fact in this decision to determine the liability issue in the matter.

THE APPLICABLE LAW

3.	In respect of the claimant's claim for unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal.  The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, the conduct of the employee (invariably referred to as “misconduct”) and capability.  The guidance bearing upon the application of these statutory provisions is derived from a number of leading cases. In matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods  v  Jones [1982] IRLR 439 in respect of which guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in Dobbin  v  Citybus Ltd [2008] NICA 42 (see further Antrim Borough Council  v  McCann [2013] NICA 7).  The tribunal in the exercise of its function is therefore very clearly guided by Iceland.  Therein the guidance (per by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now a “neutral” burden of proof) is stated as follows:- 

(1)	The starting point should always be the words [of section 57(3)] themselves;

(2)	In applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	In many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;”

The case of British Home Stores Ltd  v  Burchell [1980] ICR 301, provides guidance in regard to what is now well-settled law, in regard to conduct cases, to the effect that it is necessary for any tribunal to determine:-

(i)	whether the employer had a genuine belief in the guilt of the employee;

(ii)	whether it had reached that belief on reasonable grounds;

(iii)	whether this was following a reasonable investigation; and

(iv)	whether the dismissal fell within the range of reasonable responses in light of that misconduct.

In the case of Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was clarified that the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss.  The reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.  The duty of the tribunal is accordingly to review the decision-making of the employer based upon material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell and then to decide if the dismissal fell within the band of responses of a reasonable employer.

THE TRIBUNAL’S DECISION

4.	In this matter, the employment was subject to written terms and conditions.  These terms (“the Contract Statement”) were signed by the claimant, but a copy of the Contract Statement was not provided to the claimant until after the employment had been terminated.  The claimant, however, was given a copy of the respondent’s “Employee Handbook”.  That Handbook was described as not having any contractual force and, curiously, this is so despite the terms of the Employee Handbook being, both by implication and also expressly, imported into the Contract Statement by virtue of certain terms which have been mentioned in a little detail above.  The Employee Handbook contains a disciplinary procedure and a sickness absence policy.  Notwithstanding the purported exclusion, the tribunal must construe these terms as having some contractual force.  That is so, as there is no disciplinary policy nor any sickness policy other than the specific terms mentioned by express reference in the other document.  Further, it is abundantly clear that the respondent, in deciding to proceed with disciplinary charges against the claimant, placed reliance upon the Handbook procedures (that the claimant had breached such procedures) thereby affirming that these were, de facto, regarded as having contractual force by the respondent.  Accordingly, the Handbook terms are properly to be regarded as imported into the terms of the Contract Statement.

5.	The claimant’s job function was to work on a production line picking recyclable materials.  Performance of any operatives was measured by the respondent.  The respondent harboured concerns in February 2013 regarding the claimant’s work performance and he was taken to task regarding this unsatisfactory level of performance.  A formal written warning was issued to the claimant on 1 February 2013 which made it clear to the claimant that unless his work performance improved he was at risk of disciplinary proceedings and indeed even of dismissal; that was stated to him expressly in writing.  That warning was however specifically confined to the issue of his picking efficiency.  No formal procedures of any type were engaged in by the respondent concerning any work absence issues nor any perceived unsatisfactory attendance record.  The claimant accordingly had no reason to believe, in the absence of any formal procedures being taken, that he was in any manner placed at risk of dismissal upon any grounds relating to work attendance, including the level of sickness absence.  If the respondent was concerned regarding the issue of absence, it did not take any formal steps to notify that issue to the claimant nor to address that particular issue in advance of the disciplinary proceedings which ultimately would result in the claimant’s dismissal. 

6.	The respondent then, on 10 May 2013, commenced by written notification to the claimant a procedure whereby the claimant was required to attend a disciplinary meeting on 13 May 2013.  That meeting was expressly called to deal with disciplinary issues concerning, firstly, the claimant’s job efficiency and, secondly, persistent short-term sickness.  At that meeting, for the first time, the claimant was provided with some information both regarding his level of sickness absences and also his picking performance.  

7.	The tribunal harbours significant concerns regarding the manner in which any information was given to the claimant.  The tribunal was provided with no reason why quite detailed specific statistical and work-related information, which it must be reasonably presumed would have been readily available to the respondent in advance of the meeting, was not given to the claimant in such a manner as to enable the claimant properly to scrutinise any such information and to deal with the information in a proper and fair manner.  The claimant was not afforded, in the tribunal’s view, a proper opportunity to review, examine and to address the detail of the information.  Furthermore, it seems that some information which is now before the tribunal and upon which the respondent sought to place reliance in determining the matter, was not given to the claimant before or in the course of the disciplinary meeting.  This was a relatively brief meeting which apparently lasted for some 30 minutes and no longer.  From the sparse evidence concerning what transpired, it seems that the claimant certainly required more evidence to be produced in regard to the charges levelled against him.  His evidence was that he specifically requested that video evidence would be produced, as he explained to the tribunal.  That evidence was not controverted by Mrs Lavery and the tribunal believes that this request was expressly made of the respondent by the claimant.  There is no indication of any further investigation being conducted as a result of any issues that were raised by the claimant prior to Mrs Lavery then bringing what had transpired in the course of the meeting, firstly, to the supervisor and thereafter to Mr Joseph Doherty, the Managing Director.  It is clear, without doubt, from Mrs Lavery's evidence that it was Mr Doherty who was the decision-maker in respect of this stage of the disciplinary process.  Accordingly a summary dismissal of the claimant took place and the claimant was dismissed without notice or pay in lieu of notice.  

8.	The claimant was afforded a right of appeal, which he chose to exercise.  The appeal meeting was conducted by Mr John Murphy, a senior manager of the respondent.  The tribunal regrettably has been provided with no written record of the precise details of what transpired at the appeal meeting save for the confirmation that the ultimate decision-maker in respect of this appeal was, again, Mr Doherty (this being the tribunal’s finding of fact based upon the very clear evidence of Mrs Lavery).  Mr Murphy was not called as a witness, nor was Mr Doherty, to account for the process of any thinking and to inform the tribunal concerning the reasoning of the respondent and specifically to account for any thinking on the part of Mr Doherty in making his decision upholding the dismissal and rejecting the claimant’s appeal.  There is no evidence of any proper consideration being given to any argument advanced by the claimant in the course of the appeal; there is no account of the respondent addressing any issues emerging in the course of the appeal.  No explanation whatsoever is provided in Mr Doherty's letter confirming the appeal outcome.  It is therefore clear to the tribunal, on the basis of this evidence, that the appeal did nothing to constitute a proper and genuine rehearing or reappraisal of the matter and of the dismissal decision.  The appeal did nothing to afford any fresh examination of any evidence, argument or submission, nor to afford any fresh, conscientious and proper re-visiting and re-examination of the issues (in that regard see Taylor  v  OCS Group Ltd [2006] EWCA Civ 702).  Accordingly, the appeal may be effectively discounted as potentially affording any correction of procedural or other irregularity at any earlier stage in the matter.  The involvement of Mr Doherty as the ultimate 
decision-maker in both of the decisions, at first instance and then at appeal, is an illustration of procedural unfairness.   

9.	Regarding matters of substantive fairness, the tribunal observed that absence from work may take a number of different forms and may arise under number of quite different circumstances.  It is possible that an employee may be suffering from an identified and medically certified illness that causes repeated or persistent absences from employment.  In such a case, it is normally accepted that it would be inappropriate for any such to be treated as a conduct issue rather than a capability issue.  However, it is also normally accepted as being inappropriate for an employer to be required to obtain detailed medical evidence if an employee has an unacceptable number of short-term absences arising perhaps from various causes (see the decision of the EAT in International Sports Co Ltd  v  Thompson [1980] IRLR 340, EAT).  Further, it is normally the case in regard to short-term absences arising from various causes that, as long as adequate warnings are given, treating repeated absences as a sufficient reason for dismissal is likely to fall within the band of reasonable responses of a reasonable employer (see the decision of the EAT in Post Office  v  Jones [1977] IRLR 422, EAT).  

10.	However, in cases of persistent intermittent absenteeism, the employer should carry out a fair review of the attendance record and the reasons for absence, give the employee an opportunity to make representations and give appropriate warnings of dismissal if things do not improve.  The degree of latitude shown shall depend upon the facts in each case (see for example the case of International Sports Co Ltd  v  Thompson where the absence level was 25% in the last 18 months of employment).  However in many cases there will be factors permitting a different view to be taken. 

11.	The difficulty in this case is that the claimant’s sickness absence appears to have fallen into two distinct categories.  There was an initial period of medically-certified absence lasting for some 15 days.  It is accepted that treating genuine illness as misconduct can lead to a finding of unfair dismissal (in that regard see the decision of the EAT in Lynock  v  Cereal Packaging Ltd [1988] ICR 670, EAT).  That was then followed by a number of short-term absences (five episodes in all).  Then followed a period of seven days’ absence towards the end of the employment.  The tribunal believes that this final absence period was also medically-certified.  The only period of short-term absence is therefore the period encompassing the five episodes running from end of November 2012 to the end of March 2013.  This produced seven days of absence in all, within these five episodes.  There is no evidence that this was “weekend absence” as was suggested by Mrs Lavery.  

12.	It is generally accepted in normal industrial practice that absenteeism and lateness will not normally merit a dismissal for a first offence.  An exception to this general approach might arise if such absence or lateness were to result in very significant detrimental financial or other consequences connected to a specific key post of employment.  However, there is no suggestion that this “key post” consideration applies in this case and certainly Mrs Lavery did not endeavour to make out such an argument.  Accordingly, in the absence of any earlier formal proceedings in respect of that issue, the claimant was summoned to a meeting where the stated grounds of dismissal included his work absence record.  Taken in isolation, the tribunal would have found, without any difficulty, that a dismissal for such a first offence, with no previous disciplinary sanction or warning, would have been substantively unfair. 

13.	In that latter regard, the tribunal notes the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, at paragraph 41 (page 20), where it is made clear that the task of the employer is to assess whether absence is due to genuine illness.  It is thus generally accepted that if an employee might be suffering from an underlying medical condition leading to absences, both short term and longer term, the procedure used by the employer will be important to the issue of fairness.  If a proper and fair procedure is not followed, perhaps by adequate consultation, medical investigation and consideration of other options such as alternative employment, dismissal might well be unfair.  If an underlying medical condition is assessed, after adequate investigation, the issue becomes one of capability; the employer is encouraged to take a sympathetic and a considerate approach.  

14.	The tribunal notes that it was not stated entirely expressly, either in the disciplinary process or in any evidence given to the tribunal, that the respondent believed or had grounds to believe that the absence was not due to genuine illness.  There might be such an implication underlying things and certainly Mrs Lavery did make some allusion to a “weekend” issue.  However, there are no real grounds for that view.  There is no evidence that the respondent sought genuinely to engage with the claimant in order to establish the true nature and the reasons for the absence.  There is no evidence that the respondent, if it was felt that the absences were not genuine, sought to warn and to discipline the claimant under the applicable procedure, prior to using this absence issue as a reason for dismissal.  The respondent appears to have taken the periods of medically-certified illness (which, if these were substantial, might have given rise to capability issues) together with the shorter periods of self-certified absence (which might have given rise to conduct issues if there was evidence or properly-grounded suspicion that these were not genuine or otherwise conduct-related) and made no distinction between the two.  Accordingly, the respondent addressed everything as being a conduct matter and that displays a lack of willingness genuinely to engage with the claimant in exploring the true reason or reasons for these absences.

15.	Turning then the issue of the work performance, it is certainly the case that the claimant did receive, in February 2013, a written warning in respect of his work performance.  At that time the claimant was warned that the possibility of dismissal might be one outcome if the work performance did not improve; alternative sanctions less than dismissal were also suggested.  The claimant endeavoured to assert in his evidence to the tribunal that his performance had substantially improved.  However, the difficulty here is that it is certainly not the task of the tribunal to engage in an assessment, as would the employer, of the quality and the nature of the performance.  The tribunal’s clearly prescribed function is rather to judge whether the decision to dismiss, viewed objectively, was fair or unfair and whether that decision fell within the band of reasonable responses of a reasonable employer.  The tribunal is expressly forbidden in any manner to undertake the task of the employer nor to substitute its own decision for that of the employer (see Rogan  v  South Eastern Health and Social Care Trust and the other cases cited above).  The decision must be assessed entirely objectively from the standpoint of a reasonable employer.  The duty of the tribunal is accordingly to review the decision-making of the employer based upon material that was available or ought to have been available following the completion, in a conduct case, of the stages as outlined in the case of Burchell and then to decide if the dismissal fell within the band or range of reasonable responses of a reasonable employer.

16.	The difficulty for the tribunal in assessing whether the decision to dismiss on the ground of work performance was or was not reasonable is that the tribunal has been deprived of any opportunity to assess the quality of the respondent’s investigation of the true facts bearing upon the essential decision-making requiring to be conducted by the employer, the quality of any evaluation of the evidence, and the quality of the respondent's evaluation and assessment of the claimant’s case such as was made by him at the disciplinary hearing.  Furthermore, the tribunal has been deprived of a precise explanation of the extent to which the ultimate decision maker, Mr Doherty, who was indeed not present at the disciplinary hearing, was or was not fully appraised of all the essential facts which would have borne upon a proper and fair decision being made in the case.  The tribunal has no way of assessing, in the absence of any evidence from Mr Doherty, how he might have assessed any information or arguments and whether or not he ensured that there had been a proper investigation, or further investigation, such as might reasonably have been necessitated by all of the circumstances and if Mr Doherty did properly and contentiously take any evidence and argument into account in making the ultimate decision to dismiss.  The same also applies in respect of the appeal.

17.	Examining all of this, the tribunal’s conclusion is that the claimant was unfairly dismissed.  This determination is arrived at on the basis of the tribunal assessing all of the relevant evidence and, having done so, coming to the conclusion that the decision to dismiss, viewed objectively, does not fall within the band of reasonable responses of a reasonable employer.  The decision was, as regards picking performance, grounded upon the outcome of a disciplinary hearing at which adequate information concerning the results of any investigation on the part of the respondent together with a consequent fair and reasonable opportunity to make proper submissions arising from that, was not properly and fairly afforded to the claimant.  Objectively viewed, a reasonable employer would have gathered information of a detailed statistical nature and would have afforded to the affected employee a fair and reasonable opportunity to review this information and to assert any reasonable challenges or to raise any material issues arising.  There was no endeavour made to do that on the part of the respondent.  The same applies in respect of the appeal.  The decision maker, Mr Doherty, was the same in both instances.  That was procedurally unfair.  In respect of the absence issue, the respondent did not properly and fairly afford to the claimant an opportunity for any issues to be fully addressed, investigated and dealt with in an appropriate and fair manner and in accordance with the legal principles and good practice mentioned above.  The dismissal of the claimant by the respondent was accordingly unfair.  The claimant also raised a notice pay claim. In the light of the tribunal's finding of unfair dismissal, that claim is upheld and the matter of remedy will follow accordingly.  The tribunal shall deal further with the matter of remedy and any other outstanding issues.

Chairman:

Date and place of hearing:     22 October 2013, Belfast.

Date decision recorded in register and issued to parties: