Appeal No. EAT/460/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22nd September 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A C BLYGHTON

	MRS M E SUNDERLAND JP

MR G HARRISON	APPELLANT

THE POST OFFICE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P BUDD
(Lay Representative)

For the Respondents	MR S KILLALEA
(Of Counsel)
Brian A Holland LLB
Solicitor
The Solicitors' Office
Impact House
2 Edridge Road
Croydon
CR9 1PJ

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by Mr Harrison from a Decision of an Industrial Tribunal sitting at Leeds on the 15th May 1990, under the Chairmanship of Mr Morrish, when they unanimously decided that the application by Mr Harrison that he had been unfairly dismissed by his employers, the Post Office, failed. 

	The Applicant was a Postman/Driver and had been in that position since March 1983.  He was represented at the hearing by a Solicitor, the Post Office were represented by Counsel.  
	The reason given for terminating his employment was his unsatisfactory attendance record.  That comes within the heading of capability and therefore one looks to see in cases of genuine ill health whether an approach has been made which, to use the words we used in Lynock v. Cereal Packaging Ltd  [1988] ICR 670 was one of sympathy, understanding and compassion.

	The Post Office have agreed procedures - presumably agreed with the trade unions - and under their irregular attendance procedures there are a number of stages, stage 1, stage 2 and stage 3.  The object of those stages is to try and find out precisely the problems that exist which cause irregular attendance and also to see if the employee cannot be helped in some way with those problems, by discussion and advice from a Welfare Officer;  from an Occupational Health Service Officer, in this case it was a Nurse, or from his trade union or possibly from his own Doctor.

	There had been a number of absences over a period of time and the procedure, which the Tribunal found was properly followed, started in the April 1988.  The Applicant was advised that the situation was unsatisfactory.  The Occupational Health Service Doctor, Doctor Ive, was consulted by the Post Office management.  The Welfare Officer in Leeds was asked for his advice.  It was apparent that the Applicant, Mr Harrison had not consulted any of those whom I have named.

	There was an appointment with the Occupational Health Service for the 12th October 1988;  as found by the Tribunal, but he did not attend.  Therefore, stage 2 approached and stage 2 warning procedure was instituted.  The Applicant was seen on the 9th November 1988 by a Mr Wriggles.  He, the Applicant, was accompanied by a Mr Crossley, a friend, and the Tribunal were satisfied that the Applicant was told that his standard of attendance was unacceptable and that unless it improved it would be necessary to initiate the procedure for termination of his services on the grounds of inefficiency arising from unsatisfactory attendance.  This was set out in a document which is dated the 9th November 1988 and again he was encouraged to consult a number of those sources.  He was warned that if he did not accept some advice, or could mitigate the situation, proceedings might have to move forward towards dismissal.

	The Post Office sent a further letter of the 10th March 1989 offering him the same facilities and encouraging him to make use of them, but the Applicant says he did not receive that letter.  That letter was sent in pursuance, not of the national agreed procedure, but of the local practice in Leeds.  In accordance with that practice, further enquiries were made of the OHS and the Welfare Officer but they indicated that no approach had been made to them by the Applicant.  The next stage therefore, had to progress, and what is called a "reasons to urge" letter was written to Mr Harrison on the 20th July.  That set out all the events and suggested that if there were any reasons which he wished to put forward why his services should not be terminated they should be put forward, and indeed, it encouraged notification of intention to appeal for retirement on medical grounds if that was appropriate.  There was however, a time limit of 10 working days for that.  This letter led on to stage 3 interview, which took place on the 24th August 1989;  that was conducted by Mr Tattersfield.  Mr Harrison had with him, Mr Wilson, his trade union representative.  There are a long series of notes, which were before the Industrial Tribunal, they are on pages 62, 63 and 64 of the bundle of documents before us, and it is clear that Mr Tattersfield conducted a very careful inquiry and interview on that occasion.  

	There is no issue but that the reasons for absence were genuine medical reasons.  What was presenting the difficulty to the Post Office, as the Tribunal found, was that the number of absences, having regard to the irregular attendance procedure, was unacceptable for the proper and efficient management of the postal service.  Moreover, the Applicant was employed at a small Post Office at Heckmondwike, where cover for absence was not easily arranged, as was the case in the bigger office, for instance at Leeds.

	The Tribunal deal with the interview in paragraph 11 of the Decision, they say this:
"The notes of that interview on 24 August 1989 make reference to the fact that the applicant agreed and stated that the psoriasis condition had now cleared up but it could come back again.  Further, Mr Tattersfield expressed the view that, if the psoriasis was discounted there was still some 14 other types of absence to be found on the record.  Discussion took place about the number of single day absences which totalled 9, with 3 absences falling on a Saturday and 3 absences falling on a Monday causing a number of weekend failings.  The applicant had replied to say that he went out very rarely at the weekend. Mr Wilson (that is the trade union representative) urged that the applicant be given a further period to show that his attendance record could improve.  The applicant is reported to have said that psoriasis weakened the system making him more susceptible to illness.  He said that he had not consulted the OHS or the welfare officer as he felt it was not necessary having regard to the treatment which he was getting."

One of the points taken by Mr Budd, in the excellent argument which he has put before us, is that the Applicant denied that he had ever said that whilst the psoriasis condition had now cleared up it could come back again.  There is however, a clear note in the record that that had been said and the Tribunal found, quite clearly, that it had been said;  indeed, it is repeated in paragraph 21 that that admission had been made and we must therefore abide by that finding of fact by the Tribunal.

	Following the interview on the 24th August, Mr Tattersfield proceeded to make contact with Mrs Jones, she was the Nurse in the OHS.  He asked her about some of the symptoms or diseases which had been discussed in the hearing before him and she expressed views about psoriasis, that it was not contagious and that it would not cause stomach pains, sickness, diarrhoea or migraine and finally osteoarthritis was not connected with it.

	It has been the subject of a further point made by Mr Budd that the Post Office Management by seeking information on those matters were really taking their eye off the target because the illness from which Mr Harrison was suffering was psoriasis.  However, looking at the notes of the interview with Mr Tattersfield, it is clear that there had been 15 various causes of absence from October 1985 until July 1989, and it seems to us abundantly clear that what he was doing was asking help from a Nurse trained in medicine of the possible effect of psoriasis on what must have been the other causes put forward for absence.  We have not perused every single document in this substantial bundle, which are some 125 pages but from one or two of the documents that we have seen we are able to understand that in many of the absences the system of, what is called, self-certification took place, which is that the employee brings in a slip which he certifies is the cause for his absence and those causes were therefore the subject of investigation.

	Having completed his interview Mr Tattersfield reached the conclusion that dismissal was the only appropriate course to take and recommended that to Mr Brown, the District Head Postmaster, the only officer who had authority to dismiss.  He gave evidence, the Tribunal found that he had looked at the whole file, all documentation, and no criticism is made of him.

	There is in the procedure a right of appeal.  Mr Harrison did appeal, he appealed to a Mr Livick who is an Appeal's Officer working from another Post Office.  In fact he came from Preston, he arrived with no prior knowledge of the case, save that of course he had some papers,  he read those papers and prepared to hear the appeal.  The Applicant was accompanied by Mr Hodgson from his trade union.  At that appeal, which took place on the 9th October 1989, a completely new ground was put forward to explain the absences;  it was that Mr Harrison had had the misfortune to suffer severe financial embarrassment;  he lived with his Father and Mother and he was intent on keeping his financial problems away from them because, no doubt, he thought they would be worried about it.   The result of his attempts to do so, his bottling up of his problems, was that he had suffered from psoriasis, and everyone knows that stress and emotion is one of the basic causes of that condition.  Eventually he managed to sort out his financial affairs, in April 1987, in that an attachment of earnings order was made, I think he had to have more than one visit to the County Court, and thereafter, he at least knew that so long as he kept up the payments, he would in due course be out of the wood.  He kept up the payments, in fact he used some additional holiday money and other monies, to try to solve the problem sooner.  This all undoubtedly built up in him a condition of stress.

	That was explained to Mr Livick;  we also have a lengthy note which was prepared by Mr Livick, it stretches over some 31/2 to 4 pages.  Also before Mr Livick was some further information from Doctors.  It is quite clear from a perusal of those notes made on pages 91 to 94 that Mr Livick took the greatest care to examine the whole procedure, to ensure that it was properly carried out and fairly carried out, and to look at the whole situation by way of an appeal from the decision of the Head Postmaster, Mr Brown.  He reached the conclusion that the appeal should be dismissed.  The Tribunal set out his reasoning in paragraph 17 of the Judgment where he says this:
"He took into account the financial problems as well as the other evidence to which we have referred in these reasons.  He noted in particular that, although when the attachment of earnings order was made in April 1987 the causes for the applicant's financial worries were being withdrawn, yet his attendance record thereafter was no better than it was before.  The conclusion he came to was that there would always be reasons why the applicant could not achieve the level of attendance required by a post office employee.  He therefore accepted the decision of the district head postmaster.  He found that all correct procedures had been followed and he was not persuaded to overturn the district head postmaster's decision."

	The Industrial Tribunal felt that perhaps Mr Livick might have sought medical opinion at that appeal hearing.  However, they turn to the Act and they pose the problem which was before management in paragraph 19 when they say that there were two ways in which this matter could be approached:
"One was to deal with the matter as if they had a sick employee who in due course might have to be dismissed from his employment on sickness grounds.  In practice that option was not a real one because the reasons for absences were manifold.  The other option was to proceed under the irregular attendance rules because the efficiency of the Post Office service was being affected by the inability of the applicant to maintain a proper attendance level."

They then go on by way of comment, expressing their views about the matter, at paragraph 20:
"We too are satisfied that the procedures set out in the nationally agreed irregular attender procedure were followed.  We take the view that, notwithstanding the fact that the respondents can show that they did all that both sides of the industry contemplate as appropriate when the attendance record is bad, yet there was something lacking in their general approach to the problem.  We appreciate that invitations to an employee to have consultations with the OHS, welfare officer and trade union tie in with the procedures and there is no power to require an employee to consult those agencies.  Yet we think there was in this particular case some ground for a demonstration to the applicant of more concern for his personal welfare, particularly when he was at risk of losing his job and a series of absences occurred for medical reasons, that some special effort was being made to talk to him in a pastoral sense before proceeding with the disciplinary steps contemplated by the procedure."

They then go on and suggest that perhaps even Mr Tattersfield might have deferred a decision as a reasonable step.

	Then they face their position in law, and they quite rightly say:
"We are not allowed to decide the case on the basis of our own opinion, to say what we would have done had we been in the position of Mr Tattersfield, or indeed of Mr Brown, or Mr Livick.

We conclude that we cannot say that what Mr Tattersfield did was unreasonable in the circumstances.  The same situation applied at the time when Mr Livick conducted his appeal.  He had before him a new dimension relating to the whole matter, the stress factor, which had not been raised before.  Although, as we have said, it would have been wise that this should have been investigated from a medical point of view before the dismissal was confirmed, yet again, on all the evidence we cannot say that Mr Livick was acting unreasonably in deciding to uphold the decision of Mr Brown to dismiss the applicant."

They then go on to look at a number of particular absences, and it is quite clear that a number of different causes were being put down, including osteoarthritis.

	So that, the situation really is this, the Industrial Tribunal felt that if they had been in the shoes of Mr Tattersfield and Mr Livick they might have caused some further enquiries to be made, they might have then adjourned the hearings and looked at any further evidence.  Whether it would have made any difference or not, it is difficult to see.  They also felt that a rather more pastoral, paternal attitude could have been taken in discussion;  as against that they felt they must not step into the shoes of management, and one has to remember that every opportunity had been there for Mr Harrison to put forward his case from the earliest days and to take advice from others.  It is said, as was said in the notes, at page 93, that the trade union representative was suggesting it was "foolishness or pride" which had persuaded him not to do so.  Whatever the situation was, the fact remained that that happened and the Post Office Management therefore, found themselves, with a wholly new case being put forward, after dismissal and at an appeal stage.

	Mr Budd has taken a number of points, some of which we have already dealt with in this Judgment.  The first of his points relates to the matter of procedures as dealt with in paragraph 7 and he submits, that there is no specific evidence of national irregular attendance procedure.  Well there is, we have seen it in the documentation, I do not think he is quite right about that.  He says there is no reference to the local procedure, again, that is to be found on page 13.  But he took the point that there was no specific finding on this letter of the 10th March 1989.  The Applicant, Mr Harrison, says he did not receive it.  There is no finding one way or the other by the Industrial Tribunal and Mr Budd submits that they did place a great deal of stress on that letter.  It seems to us that if there was any misunderstanding about that matter, that particular letter was superfluous, it was over and above the agreed procedures and therefore, in fact, was additional and not essential to the procedures being applied.

	The next point is dealt with, namely, the question of whether his psoriasis could return, that was found against him, and indeed perhaps from one's own knowledge of life, it is a condition which has an unpleasant habit of returning if stress, for whatever reason, once again, arises.

	The next main point, again I think we have dealt with it by implication, was that Mr Budd criticised the reference to osteoarthritis and enquiries about it.  We think that this  arose through the fact that that, and indeed other conditions, were mentioned on the self-certification slips.

	His third and last point was that the record of absences is not quite accurately shown.  We are unable to accept that because the documentation was all before the Tribunal and they had every opportunity of seeing that, indeed, in the notes of the interviews they are clearly dealt with.

	Then last, and his main point, as we understood it, was that there should have been a full personal consultation with the Applicant, and a full medical investigation with Consultants.

	The Tribunal, in part, indicated that they themselves would have taken that course and so that criticism of the Post Office is one which the Tribunal themselves took.  However, they also took the view that it was not unreasonable for the Post Office, in other words, looking at it in this way, would a reasonable employer on the facts of the case have been wrong not to have done something, they took the view that they could not superimpose their own views on the views of the employer, which were within the band of reasonable response, perfectly reasonable views of that employer, in those circumstances.

	It follows, therefore, that whilst one may have sympathy, as indeed I think the Post Office had sympathy, with Mr Harrison, nevertheless, when balancing the need for the postal service to be maintained against the other factors, the balance came down against the Applicant, Mr Harrison.  There is only an appeal on a point of law to this Tribunal, we cannot help on fact and it follows therefore, that we are unable to find any error of law and this appeal must be dismissed.