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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Morris v. Freightliner Ltd [2001] UKEAT 0309_00_1607 (16 July 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0309_00_1607.html Cite as: [2001] UKEAT 309__1607, [2001] UKEAT 0309_00_1607

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APPEARANCES

 

For the Appellant	MR COLIN BOURNE (Of Counsel) Messrs Pattinson & Brewer Solicitors 1 Bridge Street York YO1 6WD
For the Respondent	JONATHAN SWIFT (Of Counsel) Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


JUDGE PETER CLARK

1. This appeal, brought by Mr Morris, the Applicant before the Liverpool Employment Tribunal which dismissed his complaint of unfair dismissal brought against his former employer, the Respondent, Freightliner Ltd, by a decision promulgated with extended reasons on 14 February 2000, has been allowed to proceed on one ground of appeal only, by a division presided over by Mr Recorder Burke QC at a Preliminary Hearing held on 20 July 2000.
2. In order to examine that ground of appeal it is necessary first to set out the relevant background. The Appellant was a long-standing employee and a working foreman. He was also involved in difficult negotiations with the Respondent's management as a Trade Union representative between May and July 1999. Historically, his attendance record was not especially good.
3. The Respondent operated a detailed policy to deal with absences from work. Part of that policy was directed to irregular attenders, such as the Appellant. That procedure (IAP) was considered appropriate for the persistent, short-term absentee who keeps taking the odd day or days off work, where there is no single underlying medical reason connecting the sickness absences.
4. IAP involved a potential four-stage process:

(1) An informal warning, followed by 52-week monitoring period.

(2) A first formal warning, which may be triggered at any time during the last 39 weeks in Stage 1.

(3) A final warning, which may be triggered at any time during the last 39 weeks in Stage 2.

(4) Dismissal, where there is unsatisfactory attendance during the next 13 weeks at Stage 3.

5. There is a right of appeal against dismissal. It should be observed that, where the monitoring period ends without unsatisfactory attendance, the employee will not move to the next stage.
6. The Appellant progressed through the IAP in the following way. November 1996, Stage 1 warning; August 1997, Stage 1 warning; November 1997, Stage 2 formal warning with a 52-week monitoring period; April 1998, again a Stage 2 formal warning, this time with a 13-week monitoring period; July 1999, Stage 3 final warning with 52-week monitoring period; 17 September 1999, Stage 4 dismissal with pay in lieu of notice. An appeal against dismissal was rejected on 20 October 1999.
7. On 25 October 1999 he presented a complaint of unfair dismissal to the Employment Tribunal. His case was put in two ways. First, that he was dismissed for a reason related to his Trade Union activities, an automatically unfair reason for dismissal; alternatively, if he was dismissed by reason of his attendance record (capability), the dismissal was unfair under ordinary reasonableness principles.
8. The Employment Tribunal found that the reason for dismissal was not related to the Appellant's Trade Union activities, but to his attendance record, and further found that dismissal for that reason was fair.
9. The sole ground of appeal against the Tribunal's decision is based on the premise that there is a material inconsistency within the Tribunal's reasoning. At paragraph 10 of the reasons they find, as is common ground, that both Stage 2 warnings had expired by the time that the Appellant was given a final Stage 3 warning in July 1999. It follows that that warning was given other than in strict accordance with the IAP.
10. At paragraph 25, dealing with the suggestion that the later stages of the procedure were invoked by management, because of the Appellant's involvement in the difficult negotiations leading to the Respondent unilaterally implementing new disputed manning arrangements on 12 July 1999, the Employment Tribunal said:

"Against this, however, we set this simple fact: the procedure laid down for dealing with absences provided for trigger levels for the next stage in the procedure and the relevant level had been achieved, leading to a Stage 4 meeting."

11. Mr Bourne submits that it is plain that having made that finding in relation to the question as to whether the Appellant was dismissed for his Trade Union activities, the Tribunal then overlooked the procedural irregularity when considering the question of the reasonableness of dismissal for a potential to fair reason, i.e. capability.
12. Alternatively, he submits that there was no evidence before the Tribunal to justify the giving of the Stage 3 warning. The Manager who gave it, Mr Rickerby, not having been called to give evidence and Mr Lancake, the dismissing Manager, who was called having been unable to explain that breach of procedure. Reliance was placed on the judgment of Lord Donaldson of Lymington MR in Piggott Brothers v Jackson [1982] ICR 85, 92D.
13. We are not convinced that his alternative argument strictly arises from the ground of appeal permitted to proceed to this full appeal hearing, but even if it does we are persuaded by Mr Swift that we should reject both ways in which the appeal is now put.
14. Since there is now no challenge to the Employment Tribunal's finding that the reason for dismissal related to the Appellant's capability and not his Trade Union activities, the only remaining question for the Employment Tribunal was whether the dismissal for capability was fair under Section 98(4) of the Employment Rights Act 1996.
15. In answering that question it is clear to us, particularly from paragraph 32 of their reasons, that the Tribunal did take into account the procedural irregularity at Stage 3, but found that there were grounds to justify the final warning being given in July 1999.
16. Although not spelled out in the reasons, we think that they were there taking into account, first that the second stage warning given in April 1998 could, under the procedure, have been a Stage 3 final warning; the Appellant was treated favourably in that respect. Secondly, the final warning administered in July 1999 came at a time when, looking at the overall absence record since 14 April 1998, it was plainly merited in broad terms. Indeed, no challenge was made to that final warning by the Appellant's representative at the July 1999 interview, or at the dismissal stage, nor even at the internal appeal stage.
17. Mr Bourne accepts, on the authority of Westminster City Council v Cabaj [1996] ICR 960, that a breach of a contractual disciplinary procedure will not inevitably lead to a finding of unfairness under Section 98(4) of the Act.
18. In these circumstances we have concluded that no error of law is made out in this case. The appeal must be dismissed.