Appeal No. EAT/433/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12 January 1993

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR A C BLYGHTON

	MR A D SCOTT

NORTHAMPTON TRANSPORT LTD	APPELLANTS

D MIZEN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R P SCUPLAK
(PERSONNEL CONSULTANT)

For the Respondent	MR C HARRISON
(REPRESENTATIVE)
Citizens Advice Bureau
27 Montagu Street
Kettering
NN16 8XG

	JUDGE J HICKS QC:  This is an appeal by the employers, Northampton Transport Ltd, against the decision of the Industrial Tribunal on the application of the Respondent, Mr Mizen, that Mr Mizen had been unfairly dismissed by the Appellants.

	The background to the dismissal was that Mr Mizen, who was a bus driver, had quite frequently been absent because of what can broadly be described as health problems.  Some of them were sicknesses of respiratory type viral infections;  there were also absences because of physical ailments, back sciatica and tendonitis and there were absences for medical treatment such as dental work.  It is not necessary to go in detail into the frequency or the nature of those ailments, but they caused concern to the employers.  Many of them, but by no means all, were short-term absences, and many of those were self-certified (the expression now commonly used);  others were for longer periods and were supported by medical certificates.  

	It is important to make clear, as was made absolutely clear by the Industrial Tribunal, that there was no suggestion, from beginning to end, of any malingering or any lack of genuineness in these absences, but they caused the employers concern from the operational point of view, in particular the short-term ones, because they made rostering in Mr Mizen's particular responsibilities very difficult. 

	It is not necessary to go into the history of the way the matter was dealt with in terms of disciplinary proceedings, except to say in general terms that the matter had been drawn to Mr Mizen's attention.  There was at least one formal warning, if not more, and finally the employers dismissed him.  There was a disciplinary appeal and the decision to dismiss was maintained.

	The reasons given by the Industrial Tribunal for finding that that was an unfair dismissal can be summarised in this way.  In paragraph 5 of their formal Reasons, they record the argument advanced before them by Mr Harrison, who appeared for Mr Mizen and who has also appeared before us, in these terms:
"5	Mr Harrison has argued that the sickness and disciplinary procedure were confused.  An employee can be dismissed on medical grounds but if this route is chosen other absences should be excluded.  There were specific medical problems in this particular case.  The respondents should have investigated the matter thoroughly.  If it was clear that the applicant's health was not going to be improved, then, in Mr Harrison's words, "enough was enough".  Absenteeisn, on the other hand, for other reasons, is a disciplinary matter.  Warnings are relevant for this type of absenteeism but not in the case of sickness."
	Clearly, the conduct of the employers was being criticised on the grounds that there is a clear and sharp distinction between dismissal for medical grounds, as to which warnings or expectations of improvement, as it were, of the employee's own volition are irrelevant and inappropriate, and absenteeism for non-medical, and by inference unjustified reasons, which is a disciplinary matter, in which case warnings are appropriate.  

	In paragraph 10 the Industrial Tribunal accept that argument;  they say:
"10	In this case we agree entirely with the submission made to us by Mr Harrison.  There has been an unfortunate confusion between sickness procedure and disciplinary procedure, and this is clear throughout the correspondence where meetings have been headed "disciplinary hearings" and where warnings have been set out.  In our view there is no point at all in issuing a warning which an employee cannot heed.  A warning should be given in the event of bad conduct, when it is within the power of the employee to show an improvement, but in our view there is no point whatsoever in giving a warning when the main trouble, as in this case, is failure to attend due to sickness.  There could be occasions when it is suspected that the sickness is not genuine.  The company doctor in this case says that he is satisfied that the sickness absences were genuine, and indeed both Mr Berry and Mr Mahoney [managerial executives of the employers]have gone out of their way to say that, in this particular case, they do not suggest that the sick absences were any fault of the applicant.

11	In a case where an employer is contemplating dismissing an employee because of incapability through sickness, the point which has to be decided is what the employee's prospects are of staying free from sickness in the future.  The past is only relevant insofar as it gives any help to the future position.  In this case, by basing averages from absences due to every reason (apart, and this is noticeable, from long-term sickness) the matter has been hopelessly confused."
	In dealing with the matter in that way, the Industrial Tribunal was plainly applying the passage from the Judgment of Phillips J, on behalf of the Employment Appeal Tribunal, in the case of East Lindsey District Council v G E Daubney [1977] IRLR 181, in which the Industrial Tribunal quotes his words:
"Unless there are wholly exception circumstances, before an employee is dismissed on the ground of ill health, it is necessary that he should be consulted and the matter discussed with him, and that in one way or another, steps should be taken by the employer to discover the true medical position."
	We are told that, in fact, no authorities were cited to the Industrial Tribunal, the reference, therefore to the East Lindsey case was one presumably arising from the Tribunal's own initiative and, in particular, they were not referred to the case of International Sports Co Ltd v Thomson [1980] IRLR 340.  We have been referred to the headnote of that case and I quote from it.  We have looked at the full Judgment of the Employment Appeal Tribunal in that case and the headnote is a summary for present purposes of the effect of that Judgment.  The relevant passages read as follows:
"Where an employee has an unacceptable level of intermittent absences due to minor ailments, what is required is, firstly, that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings after the employee has been given an opportunity to make representations.  If there is then no adequate improvement in the attendance record, in most cases the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee. 

In such a case, the principles set out in Spencer v Paragon Wallpapers and East Linsey District Council v Daubney relating to dismissals on the ground of incapability are not applicable.  It would be placing too heavy a burden on an employer to require him to carry out a formal medical investigation.  Even if he did, such an investigation would rarely be fruitful because of the transient nature of the employee's symptoms and complaints.

..................... it could not realistically be said that any reasonable employer would not have treated the persistent absences of the respondent as a sufficient reason for dismissing her.  This was a case where the reasonable employer was entitled to say "enough is enough".  The appellants had investigated the respondent's attendance record and issued warnings.  They did not, as the Industrial Tribunal wrongly found, rely merely on their 8% acceptable absence rule."
	- and the Employment Appeal Tribunal allowed the appeal.
	In that case, International Sports, the Employment Appeal Tribunal considered that there were sufficient facts and findings before them to enable them to substitute their own decision for that of the Industrial Tribunal, and they directly reversed the Industrial Tribunal's Decision.  It is not suggested that that would be appropriate in this case;  what is suggested by Mr Scuplak, on behalf of the Appellants, is that we should allow the appeal and remit the case to the Industrial Tribunal for reconsideration.

	In the light, in particular, of the case of International Sports we have come to the conclusion (and I think I speak for all of us when I say with some reluctance, because in no sense were the Industrial Tribunal at fault or in any way remiss in their duties) that had the Industrial Tribunal's attention been drawn to International Sports it would, before they reached a conclusion - and it is not for us to say what the conclusion in those circumstances would have been or will be - but it would have been incumbent upon them to take into account the considerations that are set out in that case.   They would then have to consider whether the facts of the present case, which undeniably have some resemblance - I say that without any prejudging of whether the resemblance is such that the same result would follow, but undoubtedly they have some resemblance - to the facts of International Sports, in that there were repeated absences for minor ailments of various kinds, and that the procedure adopted by the employers did include the issue of warnings and did have regard to the attendance record as a whole, are such that their original finding of unfair dismissal should be sustained or reversed.

	It seems to us, that had the Industrial Tribunal's attention been drawn to International Sports they would undoubtedly have considered what its implications were on this present case.  We consider that the proper course is to give them the opportunity of doing that by remitting the case to them, if the same Industrial Tribunal can be reconvened, who have the facts in mind and who, apart from this one point which did not arise out of any fault of their own, in our view, conducted the application perfectly competently and properly, so that they can re-consider the matter in the light of the law as a whole, that is to say taking into account, in particular, International Sports as well as East Lindsey District Council and reaching a decision after that consideration.

	The formal result, therefore, is that the appeal is allowed and the matter is remitted for that purpose.