Appeal No.	 EAT/1429/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 May 1997

Before
HIS HONOUR JUDGE D M LEVY QC
MRS T A MARSLAND
MR R H PHIPPS

MR W MANNING	APPELLANT

THE POST OFFICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

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

	JUDGE D M LEVY QC:     We have heard this morning that Mr Manning has applied for an adjournment which has been refused, as we understand it, administratively and he is unable to attend the hearing of his appeal on the ex-parte system.

	The facts on this appeal are these.  Mr Manning was a long time employee of the Post Office, who commenced proceedings in an Industrial Tribunal in which he claimed pay in lieu of notice and that he had been unfairly dismissed (by an Originating Application received on 29 February 1996).  

	The Post Office’s Notice of Appearance dated 3 May 1996 said this:

“1.  To enable the respondent to provide an efficient and reliable service it is necessary for its employees to attend regularly for work.  The respondent monitors its employees’ sick absence records by means of a procedure known as the irregular attender procedure.  This provides for informal and formal warnings to be given to an employee whose attendance record is unsatisfactory, to encourage an improvement.
2.  The applicant was warned that his attendance record was unsatisfactory, and that consideration was being given to his dismissal.  He took the opportunity to state his case at an interview with the resources and quality manager, accompanied by his trade union representative.  Having considered his representations and the matter generally, the manager decided to dismiss the applicant on the grounds of his unsatisfactory attendance record.  That decision was upheld on appeal.”

	There was a hearing before an Industrial Tribunal sitting at London (North) on 15 October 1996.  The findings of fact in paragraph 2 include these:

(a)  The Applicant was employed by the Respondent from 28th July 1986 [his employment ended on 15 December 1995].
(b)  Between 1989 and 26th September 1994 he was absent from work on sick leave on 381 occasions.  From the 26th September he was continuously absent from work on sick leave for a further 416 days making a total of 797 days.  From the date of his dismissal he has been unfit to seek work and has been in receipt of an invalidity pension.”

	The decision later finds that the Applicant was invited in to explain why his attendance record was so poor and to appeal for retirement on medical grounds as an alternative to termination.  Further findings are that, by a letter dated 25 September, the Area Medical Adviser for the Post Office indicated that he had seen Mr Manning and that there was no early likelihood of his return to work and he was not keen to consider medical retirement.

	The Industrial Tribunal found that in the circumstances, he was not unfairly dismissed and against that finding Mr Manning appealed by Notice of Appeal eventually re-dated 12 February 1997.  In that Notice of Appeal he draws to the attention of this Court a paragraph in the decision which says this:

“Finally he asked if he could leave the Respondent’s service on the grounds of ill health and asked that he might be medically retired.”

	And a reference to paragraph 3 of the Decision:

“Having found that the Applicant was fairly dismissed we can only record by way of passing our surprise that no arrangements were made to have the Applicant medically examined prior to the decision not to offer him medical retirement.”

	The Industrial Tribunal were, in our judgment, giving advice to the Post Office as to what the best practice was.  They carefully examined the facts in this case and found that there was more than adequate consultation and sufficient steps taken before the decision to dismiss was taken and, in the circumstances, the dismissal was fair.

	In the circumstances we think there is nothing in this ground of appeal.  There is a reference to the case of Links & Company Ltd v Rose [1991] IRLR 353 in the Notice of Appeal, but the facts of that case were very dissimilar to those which we are considering and there was a proper direction here.  There was a suggestion in paragraph 6.4 that the decision was legally perverse and that no reasonable Industrial Tribunal would have arrived at the same decision.  With respect to Mr Manning we are unable to accept that.  The decision of the Industrial Tribunal was one that any reasonable Tribunal would have reached in the circumstances.

	In our judgment this appeal has to be dismissed at the preliminary stage.  It has no hope whatsoever of success.