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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Clarke v. Haringey [2001] UKEAT 792_99_0102 (1 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/792_99_0102.html Cite as: [2001] UKEAT 792_99_102, [2001] UKEAT 792_99_0102

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APPEARANCES

 

For the Appellant	MR VINCENT ONUEGBU Tottenham Legal Advice Centre 754-758 High Road London N17 OAL
For the Respondent	MR PETER OLDHAM (Of Counsel) The London Borough of Haringey Corporate Services Alexandra House 10 Station Road Wood Green London N22 4TR


 


SIR CHRISTOPHER BELLAMY QC:

1. The appellant, Ms Barbara Clarke, appeals against the decision of an employment tribunal sitting at London North sent to the parties on 12 May 1999. By that decision the tribunal dismissed Ms Clarke's claims for unauthorised deduction from wages and for unfair dismissal brought against her employers, the London Borough of Haringey, who is the respondent.

The facts

2. Ms Clarke was employed by the respondent from 1 September 1986, latterly as a Senior Administrative Office Grade 3 in the Rent Office Service. Unfortunately by 1997 she had been suffering from carpal tunnel syndrome. The tribunal found that she was off work as a result of carpal tunnel syndrome from 22 August 1997 to 8 May 1998.
3. On 30 September 1997 Ms Clarke telephoned Mr Green, who was then acting Chief Rent Officer, about her sickness, and told him that she was going to see her doctor on 1 October and would telephone again following this appointment. This Ms Clarke did not do.
4. According to Ms Clarke's evidence before the tribunal, she received advice that her mother had sustained a heart attack in Jamaica and travelled to Jamaica to look after her. Ms Clarke told the tribunal that her mother was 74 years old and lived alone, and that prior to travelling to Jamaica she obtained a sickness certificate from her GP. A copy of that sickness certificate was not, however, before the tribunal. Ms Clarke travelled to Jamaica on 3 October 1997. The medical certificate was never received by the respondent.
5. On 9 October 1997 Mr Green wrote to Ms Clarke noting that the respondent had not received a doctor's certificate and asking her to telephone him. He heard nothing and telephoned Ms Clarke's general practitioner to see if a sickness certificate had been issued. He was told that a certificate was issued for four weeks on 1 October and that a duplicate would be prepared if it was requested by Ms Clarke.
6. On 23 October 1997 Mr Green wrote again to Ms Clarke noting that he had not received any doctor's certificate since the one that expired on 30 September and advising that he would have to arrange an attendance review. The letter concluded: "failure to respond to this letter may result in loss of pay".
7. On 19 November 1997 Mr Green was close to Ms Clarke's address on official duties and called to see whether he could establish why he had not heard from her. He looked through her letter box and noted that a lot of unopened mail was on the floor.
8. When Mr Green returned to his office he wrote his letter of 19 November 1997 to Ms Clarke notifying her that her pay would be suspended if he did not hear from her by 28 November 1997, and indicating that he would hold an attendance review meeting. Nothing further was heard from Ms Clarke.
9. By a letter dated 5 December 1997 Mr Green wrote again to Ms Clarke in the following terms:

"Dear Barbara

I wrote to you on November 19 1997 in order to hold an attendance review meeting with yourself. I have had no response to date.

Your pay will now be suspended as of now and will not be reinstated until you have called me to arrange a meeting, my number is 0181 801 2143.

The purpose of this meeting will be:

Determine when you are likely to be fit to return to work.

Advise you of the need for a referral to occupational health unit.

Enable problems affecting your health to be identified, and where possible resolved.

Advise you of the action that could happen for not following the proper reporting procedures.

If for any health reasons you are unable to come to the office, then a colleague and I will visit you at home.

I have enclosed a copy of the sickness absence leaflet as a reminder of the procedure and your responsibilities as an employee. I have highlighted the relevant parts of the leaflet for your perusal."

10. On 31 January 1998 Ms Clarke returned to England from Jamaica and telephoned Mr Green on 2 February 1998. Mr Green asked why she had not contacted the respondent and Ms Clarke explained that her mother was ill and she had forgotten to telephone the respondent. She confirmed that she had written to her neighbours to ask them to keep an eye on her flat and had sent one Christmas card. However, she had not written to the respondent.
11. Ms Clarke obtained a duplicate backdated medical certificate from her GP for the period from 16 September 1997 until 2 February 1998 which was dated 2 February 1998, and a further certificate for two months from 2 February 1998. These she sent to the respondent with a letter to Mr Green dated 25 February 1998. That letter says:

"I am sorry I could not keep in touch by phone due to stress of hearing my mother's serious illness. I had to go to Jamaica to be with her".

12. Mr Green acknowledged receipt of the medical certificates by a letter of 2 March 1998. By a letter dated 3 March 1998 Ms Clarke stated to Mr Green:

"I was out of order not to write to you about my explanation of my action. The reason is I did not know I had to write in and that is the honest truth, I thought the certificates were enough proof."

13. By three letters each dated 16 March 1998 Mr Green recorded the sickness absence, notified Ms Clarke of an attendance review meeting to be held on 31 March 1998 and notified Ms Clarke of a disciplinary hearing to be held on 31 March 1998. The letter of 16 March 1998 regarding sickness monitoring reads as follows:

"Re: sickness monitoring

With reference to your letter dated 25.2.98 requesting your case to be referred to the Occupational Health Unit, I have to inform you that for this to be done an attendance review meeting must be held.

I would therefore like you to attend a formal meeting on Tuesday 31 March 1998 ... Don Lan-George for the Policy Unit will also be in attendance.

The purpose of the meeting will be:

(i) Continued cause for concern regarding your sickness absence

(ii) The possibility of a referral to Occupational Health Unit.

If you wish you may be accompanied by a Trade Union representative or a friend."

14. Subsequently, by a letter dated 30 March 1998 Mr Green notified Ms Clarke of the postponement of the attendance review meeting and the disciplinary hearing. The letter of 30 March 1998 reads as follows:

"Re: sickness monitoring and disciplinary hearings

With reference to the above-mentioned hearings arranged for Tuesday 31 March 1998 I have to inform you that they have both been postponed for the time being.

The reasons being firstly, that Don Lan-George is today on sick leave and there is no indication as to whether he will be back in the office tomorrow. Secondly, I am now of the opinion that under the Local Authorities' Disciplinary Code of Practice it should be Harvey Chappell the Borough solicitor who should hear your case. Papers have now been sent to him therefore, he will be contacting you in due course."

15. Nothing further transpired until Ms Clarke consulted Tottenham Neighbourhood Law Centre, who wrote to the respondents on 7 May 1998 in the following terms:

"We understand that an internal disciplinary procedure is in process with regard to our client and we are representing her in that matter.

Further, we understand that our client has received no pay since November 1997. We would be grateful if you would explain the reason for withholding her pay.

Our client has not been dismissed or, we understand, suspended without pay. Therefore failure to remunerate her is a breach of contract contrary to section 2 of the Apportionment Act 1870 and Common Law. Following Sim v Rotherham Metropolitan Borough Council [1987] Ch 216 an employer must prove both breach of contract and damage before a lawful deduction from pay may be made. This has not been the case here. Our client has provided up-to-date sick notes, the last one being dated 3 April 1998 and has therefore satisfied her obligations under her contract of employment.

Due to the urgency of the situation if no reply is received to this letter within three days application will be made to the Court for an injunction to enforce our client's rights under her contract of employment.

Further application will be made to the Industrial Tribunal under sections 13 to 27 of ERA 1996 on the grounds that there have been unlawful deductions since November 1997 since you have no contractual authority to suspend our client without pay".

16. That letter elicited the following response from the respondent, which is dated the following day, 8 May 1998:

"From the information made available to me, I have to say that I see the position rather differently. The circumstances here are unusual, but I do not think there is any doubt that on the facts your client absented herself from work without seeking permission from her employer and indeed without even notifying her employer before hand, in order to go to Jamaica to care for her sick mother. It was only after her return to this country at the beginning of this year that she notified her employer, by telephone, as to the reasons for her absence.

Your client has not been suspended and no disciplinary action has been taken against her. Her pay was suspended when she absented herself from work without any explanation whatsoever. This was an entirely appropriate course of action for any employer to take, and particularly where public money is involved. It seems to me that by her own action, your client brought her contract of employment to an end, she repudiated it by not turning up for work and offering no explanation for her absence until after her return to this country in February 1998. To expect any employer to continue to pay wages in such circumstances is entirely unreasonable. The fact your client was not even in the country makes it even more so.

I understand your client does not have a P45 and that this may be, or is, having an effect on her ability to secure alternative employment. If that is the case, I would be prepared, entirely without prejudice to the outcome of any hearing which may take place, to arrange for a P45 to be sent to her quickly. Please let me know if you would like me to do this.

The hearing to which I made reference would be an opportunity for your client to explain her situation, to make any representations she thought appropriate (and of course for you to do so on her behalf). It would not, in my view, be a disciplinary hearing in any event because your client had repudiated her contract of employment and is no longer an employee. However, as I indicated earlier, the circumstances of this case are somewhat unusual and it is thought appropriate to give your client an opportunity to be heard. No doubt the medical certificates in particular would feature in the discussions at any hearing.

The hearing will be set up as quickly as is possible and you will be notified of the arrangements. If, however, legal proceedings are commenced in the High Court and/or in the Industrial Tribunal, as you have indicated, serious consideration would have to be given to the appropriateness or otherwise of a hearing in such circumstances. I trust that on reconsideration it will not be thought necessary or appropriate to commence any proceedings, but that is, of course, a matter for you and your client.

In the event that proceedings are commenced, please do know that they will be vigorously contested and a costs order sought if appropriate."

The proceedings leading up to this appeal

17. On 6 August 1998 the appellant presented an IT1 complaining of unlawful deduction from wages, unfair dismissal, and discrimination on the grounds of disability. This last head of claim has since been abandoned.
18. In essence, the appellant contended in her IT1 that the respondent's letter of 8 May 1998 amounted to a dismissal, alternatively to a repudiatory breach of contract by the respondent which the applicant accepted by a subsequent letter of 19 June 1998, thus giving rise to a constructive dismissal. She further contended that she was dismissed for asserting a statutory right not to suffer unlawful deduction from her wages and/or that she was unfairly dismissed, and that she had suffered unlawful deduction from her wages since November 1997.
19. By an IT3 of 14 September 1998 the respondent contended that the complaint was out of time. On the substance, the respondent contended principally that the appellant had abandoned her contract of employment, alternatively had resigned from her employment by February 1998 at the latest, as a result of being absent from work without permission from 1 October 1997 onwards and not communicating with the respondent. Further, the appellant had herself been in breach of the respondent's sickness absence procedures under her contract of employment and had thus brought the contract to an end, alternatively the respondent had accepted those breaches thus also bringing the contract to an end. Accordingly the respondent denied both unfair dismissal and unlawful deduction from wages.
20. Following a hearing for directions on 17 November 1998, the employment tribunal ordered that there should be a preliminary hearing to determine what was the effective date of termination of the appellant's contract for the purpose of deciding whether the IT1 had been presented within the time limit of three months provided by sections 23(2) and 111(2) of the Employment Rights Act 1996. Since the IT1 was received by the Tribunal on 6 August 1998, the application was within the time limit if the effective date of termination of the contract was on or after 8 May 1998; however, if the effective date of termination of the appellant's contract of employment was earlier than 6 May 1998 her complaints were arguably out of time.
21. That preliminary point was heard by an employment tribunal sitting at London North on 15 December 1998. In the decision sent to the parties on 6 January 1999 ("the preliminary decision") the tribunal held that the effective date of termination was the day on which the appellant received the respondent's letter of 8 May 1998. The principal reason was that the tribunal was satisfied that it was necessary for the respondent to advise the applicant that it believed she had repudiated her contract of employment, and that they were accepting the repudiation and thereby dismissing her. Since the respondent did not accept the appellant's alleged repudiation of the contract any earlier than the letter of 8 May 1998, the effective date of termination occurred when the appellant received that letter. Accordingly the complaint presented on 6 August 1998 was in time (see paragraphs 9 to 11 of the preliminary decision).
22. The substantive case then came before a second employment tribunal sitting at London North on 26 April 1999. By a decision sent to the parties on 12 May 1999 ("the contested decision") the tribunal rejected the appellant's claims.
23. As regards the unauthorised deduction of wages contrary to section 13(1) of the Employment Rights Act 1996, the tribunal said this at paragraph 19 of the contested decision:

"19 In making our decision on this issue we took the following matters into account:

(a) The respondent's sickness absence procedure provides that an employee must adhere to the sickness procedure set out and sets out requirements for notification if an employee will be away from home during sickness absence. It also imposes a requirement that if an employee fails to comply then disciplinary action may result and/or the employee's pay may be withheld or suspended. Ms Clarke accepts that she had a copy of the sickness procedure.

(b) For whatever reason the sick note that Ms Clarke says that she sent to the respondent was not received and she went to Jamaica to see her sick mother on 3 October 1997. She did not respond to Mr Green's letters and her pay was suspended with effect from 1 December 1997.

(c) When Ms Clarke returned and telephoned Mr Green she could give no convincing explanation as to why she had not contacted Mr Green during her absence in Jamaica. The tribunal accepts that she may have been upset and concerned when she had to leave for Jamaica but she was there for four months and failed to write to the respondent at all. She told us that it was difficult to telephone. If she was unable to telephone she could have written or arranged for somebody else to write out a letter dictated by her and sent this to the respondent.

(d) The respondent was contractually empowered to suspend Ms Clarke's pay and was authorised to suspend pay in these circumstances by her contract.

(e) Having taken these matters into account the suspension of pay does not constitute a deduction of pay under section 13 of the Employment Rights Act because suspension of pay was authorised in these circumstances."

24. As regards the complaint of unfair dismissal, the tribunal said this at paragraphs 21 to 23 of the contested decision:

"21 The first issue for determination by the tribunal is whether Ms Clarke resigned or whether she was dismissed. Mr Oldham for the respondent argued, and the respondent's letter of 8 May said, Ms Clarke had repudiated her contract by not turning up for work and offering no explanation for her absence until her return from Jamaica in February 1998.

22 The tribunal accepts that Ms Clarke did repudiate her contract of employment by not keeping the respondents advised of her whereabouts when she went to Jamaica but the respondent did not act upon this in February 1998 when Ms Clarke returned. They waited until they received the letter from Ms Clarke's legal advisers on 7 May 1998. In the meantime the respondent corresponded with Ms Clark concerning an attendance review meeting and a disciplinary meeting which suggests that there was an affirmation of the contract of employment by the respondent.

23 It is for this reason that it is the unanimous decision of the tribunal that the letter of 8 May 1998 constitutes a dismissal of Ms Clarke by the respondent."

25. At paragraph 24 the tribunal identified the reason for the dismissal in these terms:

"The reason for Ms Clarke's dismissal was her conduct in failing to attend work for four months and not providing an explanation until after her return from Jamaica. This is a reason relating to conduct which is a potentially fair reason for dismissal under section 98(2)(b) of the Employment Rights Act 1996."

26. As regards the fairness of the dismissal the tribunal said at paragraphs 25 and 26:

"25 By section 98(4) of the Employment Rights Act 1996, the determination of the question whether the dismissal is fair or unfair, having regard to the reasons shown by the employer, depends on whether in the circumstances, including the size and administrative resources of the respondent undertaking, the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The test for the tribunal is whether the dismissal for the conduct concerned by the respondent fell within the range of reasonable responses of a reasonable employer.

26 In reaching our decision on this issue we took the following matters into account:

(a) Ms Clarke did not contact the respondent when she said she would following her doctor's appointment on 1 October 1997.

(b) Ms Clarke travelled to Jamaica on 3 October 1997 to visit her sick mother, without contacting the respondent in contravention of her contract of employment. She contacted her neighbours but not her employer and she accepts that she did not contact her employer.

(c) Ms Clarke may have sent a medical certificate prior to her departure for Jamaica but on the evidence we have before us this was not a medical certificate for a period of three months but for a period of four weeks as notified to Mr Green by Ms Clarke's GP when they were contacted. For whatever reason the medical certificate did not arrive and the respondent was left in the dark as to the reason for Ms Clarke's absence.

(d) The respondent wrote to Ms Clarke on 9 October and on 19 November without any reaction.

(e) On Ms Clarke's return on 2 February 1998 she could provide no convincing explanation as to why she had not notified the respondents of her whereabouts. Nonetheless on 25 February she sent a back-dated sickness certificate for the period of her absence and one for a further two months.

(f) On 16 March the respondent wrote concerning an attendance review meeting and a disciplinary meeting. These were subsequently cancelled, the attendance review meeting being cancelled because Mr Lan-George of the Policy Unit was ill, and the disciplinary meeting was cancelled because Mr Green found that he was not authorised to conduct a disciplinary meeting.

(g) It was Ms Clarke's representatives' letter of 7 May in relation to suspension of pay which resulted in the letter from the respondent of 8 May dismissing Ms Clarke.

(h) No disciplinary hearing was held and the proceedings for a disciplinary meeting and an attendance review meeting were not concluded by the respondent.

(i) We have taken into account the case of British Home Stores Ltd v Burchell. The respondent must show that it had reasonable grounds for its belief in the employees conduct based on a reasonable investigation. There is no doubt Ms Clarke was absent without notifying the respondent. She admits this. Mr Green investigated at the time of her absence by writing to her, contacting her GP and visiting her property and looking through her letterbox. We are satisfied that Mr Green conducted a full investigation and there was nothing further that he could do to investigate the absence of Ms Clarke. There was no change in the situation after Ms Clarke's return from Jamaica and she continued to be absent."

27. After referring to Royal Society for the Protection of Birds v Croucher [1984] ICR 604 the tribunal concluded (at paragraph 27):

"that in the circumstances the respondent had completed all investigation that was necessary, and we are satisfied the dismissal in the circumstances fell within the range of reasonable responses of an employer and was in accordance with equity."

Accordingly the tribunal found that the dismissal of Ms Clarke was fair (paragraph 28).

28. At an ex parte preliminary hearing before this Tribunal on 12 October 1999 (HH Judge Altman, Mrs R Chapman and Mr G H Wright) our colleagues allowed the appeal to proceed to a full hearing as regards the lawfulness of the deduction from wages, particularly as regards the period from 25 February to 8 May 1998, and as regards the fairness of the dismissal, particularly from the procedural point of view. This Tribunal also found that there was no arguable point of law on the question whether the appellant had been dismissed for asserting a statutory right not to suffer any deduction from her wages, and that matter has not been further pursued.

The unlawful deduction of wages claim

29. It is argued on the appellant's behalf that she telephoned Mr Green on 2 February 1998 as soon as she returned to England, and thereby fulfilled Mr Green's request that she contact him made in his letter to her of 5 December 1997. Shortly afterwards, she produced a medical certificate covering the period for two months from the 2 February 1998, and also a backdated certificate for the period from 16 September 1997 until 2 February 1998. Bearing in mind that the effective date of termination of the appellant's contract was not until 8 May 1998, the respondents had no grounds for withholding her wages, at least from 31 January 1998 onwards. As regards the period prior to that date, the appellant was not aware of any obligation to keep the respondent informed and thought that the certificates were enough (paragraph 14 of the contended decision). Reliance is also placed on pp 62 and 65 of the respondent's "Sickness Absence–revised procedure" which did not provide, or did not clearly provide, for the deduction of pay without a hearing. If the respondent wished to continue to withhold the pay in question after the end of January 1998, it should have held a hearing.
30. The respondent submits that it was in any view fully entitled to deduct the appellant's wages until at least 25 February 1998 when the relevant sickness certificates were supplied. As regards the period from 25 February to 8 May, the appellant had already been in breach of contract for four months, from October 1997 to January 1998; that was an 'irremediable' breach which entitled the respondents to treat the contract as at an end. The fact that the respondents did not inform the appellant until 8 May 1998 of its acceptance of her breach as terminating the contract does not mean that they were obliged to pay her from 25 February to 8 May 1998.
31. Section 13 of the Employment Rights Act 1996 ("the Act of 1996") provides;

"(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section "relevant provision", in relation to a worker's contract means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion."

32. As regards the period of suspension of the applicant's pay from 1 December 1997 up until the 2 February 1998 when the applicant contacted Mr Green, we can detect no error of law in the tribunal's rejection of the applicant's claim on the grounds set out in paragraph 19 of the decision. During that period, the applicant was absent from work in Jamaica, and had provided no contact address, no explanation for her absence, and no medical certificates to the respondent. The tribunal found as a fact that the respondent was contractually empowered to suspend Ms Clarke's pay in those circumstances. The tribunal also found as a fact that Ms Clarke had a copy of the sickness absence procedures from which it may be inferred that she knew what the procedures were. By necessary implication the tribunal's reasoning applies equally up to 25 February 1998 when Ms Clarke for the first time furnished the medical certificates that the sickness absence procedure required.
33. We note, however, that the tribunal did not address itself to the question whether the same considerations applied in the period after 25 February 1998 until the effective date of termination of the contract – 8 May 1998. During that period, Ms Clarke complied with the sickness reporting procedure, and the respondents were aware both of her whereabouts and that she was off work sick. It would seem difficult to suggest that, as from 25 February 1998, there was any breach of the sickness absence procedure.
34. It is true that the tribunal also found that Ms Clarke had repudiated her contract of employment in absenting herself in Jamaica for four months up to February 1998 without informing the respondents of her whereabouts (paragraph 22). The respondents argue, therefore, that there was no further obligation to pay Ms Clarke any remuneration and that her repudiatory breach was an "irremediable" breach which the subsequent furnishing of the medical certificates could do nothing to alter, even for the period from 25 February onwards.
35. The difficulty with this argument, in our view, lies in the further findings of fact made by the tribunal in paragraphs 22 and 23. There the tribunal found that the respondent did not act on Ms Clarke's breach when she returned from Jamaica, but waited until they received the letter from Ms Clarke's legal advisers on 7 May 1998. The tribunal also found at paragraph 22 "In the meantime the respondent corresponded with Ms Clarke concerning an attendance review meeting and a disciplinary meeting which suggests that there was an affirmation of the contract of employment by the respondent".
36. On that basis the tribunal found, at paragraph 23, that the letter of 8 May 1998 constituted a dismissal of Ms Clarke by the respondent, thereby rejecting the respondents' submission that Ms Clarke had, in effect, resigned. We add that in the preliminary decision of the tribunal of 6 January 1999 it had also been held that the effective date of termination of the contract was 8 May 1998, on the grounds that Ms Clarke's repudiatory breach was not effective to terminate the contract until the respondents' acceptance of that repudiation had been communicated to her by the letter of 8 May 1998.
37. In the light of those considerations, Ms Clarke seems to have been still "employed" by the respondents within the meaning of section 13(1) of the Act of 1996 during the period 25 February to 8 May 1998. Since, during that period, the contract had not yet been terminated, and the sickness reporting procedure had been followed by Ms Clarke, there would appear to be no relevant statutory or contractual provision on the basis of which the respondent could refuse to pay Ms Clarke her wages (or sick pay) for the period from 25 February 1998 until 8 May 1998.
38. As far as we can see the only escape from this conclusion would be if the tribunal had found that, as at 25 February 1998, the appellant was no longer employed by the respondent for the purposes of section 13(1) by reason of her earlier repudiatory breach, but it seems to us that any such possibility is precluded by the tribunal's findings to which we have already referred. Nor do we see any basis for the respondents' argument based on the notion of an "irremediable breach", particularly since, at the relevant time, the respondent had not accepted the appellant's repudiation and the contract continued to subsist.
39. We therefore find that the tribunal erred in law in failing to address the question of the lawfulness of the deduction of the appellant's pay (or sick pay) in the period from 25 February 1998 to 8 May 1998, and to that extent the appeal is allowed. Since there are no further findings of fact to be made, we think it is appropriate for us to substitute for the tribunal's decision a declaration that there was an unlawful deduction of wages or sick pay contrary to section 13 of the Act of 1996 in respect of the period 25 February 1998 to 8 May 1998.

The Unfair Dismissal claim

40. As regards the question of unfair dismissal, the appellant draws attention to the finding in the preliminary decision of 6 January 1999 (paragraph 3) that in October 1997 the appellant's doctor advised her that she would not be able to return to work until she had seen a Consultant whom she was due to see in March 1998, and to the finding in paragraph 2 of the contested decision that she was absent continuously because of carpal tunnel syndrome from 22 August 1997 until 8 May 1998. Against that background, it is submitted that the tribunal fell into error, at paragraph 24 of the contested decision, in holding that the reason for the appellant's dismissal "was her conduct in failing to attend work for four months and not providing an explanation until after her return from Jamaica". In fact the true reason for the appellant's dismissal was a failure to follow the sickness reporting procedure, rather than a failure to attend work.
41. On the basis that the appellant's failure lay only in respect of a failure to follow sickness reporting procedures, no reasonable tribunal could have found that her dismissal on that ground was within the range of responses open to a reasonable employer in the circumstances of this case. In particular, the respondent's sickness absence procedures do not expressly provide for dismissal in these circumstances; she was not warned of the possibility of dismissal, either in the letter of 5 December 1997 or otherwise; she did not know of the reporting procedures that had to be followed; she relied, or may reasonably have relied, on the medical advice in August 1997 that she should not work until she saw the consultant in March 1998; the procedural failure of not supplying the certificates was remedied on her return from Jamaica; and the respondent did not investigate the matter, cancelled the sickness review meeting and postponed any disciplinary hearing prior to dismissing her.
42. On the latter point, the appellant submits that the respondent's disciplinary rules formed part of her contract of employment but that, contrary to those provisions and to the rules of natural justice, she had been given no opportunity to state her case: see Rules 2.1, 2.3, 2.4 and 2.11. Furthermore, according to Rule 5.1, an employee cannot be dismissed for a first act which is deemed to be misconduct, but can be summarily dismissed for an act of gross misconduct. In this case her conduct could not be 'gross misconduct', and no final written warning was given in respect of misconduct as required by Rule 5.2.
43. The respondent submits that the tribunal was entitled to come to the conclusion that the dismissal was fair on the evidence before it, applying the principles of RSPB v Croucher, cited above, and British Home Stores v Burchell [1980] ICR 303. In particular, the respondents had carried out as much investigation into the matter as was reasonable in the circumstances of the case, the paths of explanation had been exhausted, and dismissal was within the range of reasonable responses to be expected from a reasonable employer. The appellant's conduct was in breach of contract and justified the respondent as no longer treating her as in its employment. Both pp 62 and 65 of the "Sickness Absence—revised procedure" indicate that disciplinary action may be taken for breach of that procedure. Although a dismissal without a hearing may be unfair, there can be a fair dismissal in the absence of a hearing, as indicated in Polkey v A E Dayton Services [1988] ICR 142. In this case the appellant must show that the decision of the tribunal was not a 'permissible option' in accordance with Duffy v Yeomans [1994] IRLR 642.
44. In our view, the first question that arises is whether the tribunal erred in law in finding, at paragraph 24, that the reason for the appellant's dismissal was "her conduct in failing to attend work for four months and not providing an explanation until after her return from Jamaica", rather than, as the appellant submits, for failing to follow the respondent's sickness reporting procedures.
45. The tribunal's finding at paragraph 24 as to the reason for the dismissal is a finding of fact with which we cannot interfere unless that finding is shown to be perverse in the sense that no reasonable tribunal could have made that finding on the evidence before it. In this case, the respondent's letter of 8 May 1998, which the tribunal found constituted the letter of dismissal, stated:

"I do not think there is any doubt that on the facts your client absented herself from work without seeking permission from her employer and indeed without even notifying her employer beforehand, in order to go to Jamaica to care for her sick mother. It was only after her return to this country at the beginning of this year that she notified her employer, by telephone, as to the reasons for her absence."

and also

"It seems to me that by her own action your client brought her contract of employment to an end, she repudiated it by not turning up for work and offering no explanation for her absence until after her return to this country in February 1998."

46. In the light of those reasons set out in the letter of 8 May 1998, in our view it is impossible to say that the tribunal's finding in paragraph 24 was perverse. We therefore approach this appeal on the basis that the reason for dismissal was the appellant's conduct "in failing to attend work for four months and in not providing an explanation until after her return from Jamaica", as the tribunal held.
47. The next question is whether, in the light of that reason, the tribunal erred in law in deciding that Ms Clarke's dismissal was fair.
48. In that regard we observe, first, that at paragraph 25 of its decision the tribunal correctly directed itself as to section 98(4) of Employment Rights Act 1996, which provides, in effect, that the determination of the question whether a dismissal is fair or unfair depends on whether in the circumstances the respondent acted reasonably or unreasonably in treating the reason shown by the employer as a sufficient reason for dismissing the employee. The tribunal then went to hold, also correctly, that in applying that section the test is whether the dismissal by the respondent for the conduct concerned fell within the band or range of reasonable responses of a reasonable employer: see Foley v Post Office, CA 31 July 2000, in which that test, as expounded in Iceland Freezer Foods v Jones [1983] ICR 17, has recently been reaffirmed by the Court of Appeal.
49. It is also apparent from paragraphs 26(i) and 27 of the decision that the tribunal referred itself to the criteria to be applied in accordance with British Home Stores v Burchell [1980] ICR 303, and to Royal Society for the Protection of Birds v Croucher already referred to. According to Burchell's case, which has also been reaffirmed by the Court of Appeal in Foley, where an employee is dismissed for misconduct, the employer must believe on reasonable grounds that the employee was guilty of the misconduct in question and must, at the stage when he formed that belief, have carried out such investigation into the matter as was reasonable in all the circumstances of the case: [1980] ICR 304 D-E. The tribunal appears to have relied on Croucher's case for the proposition that no extended investigation is required where the particular act of misconduct in question is not in doubt: see [1984] ICR 612 A–C.
50. It appears from paragraph 26 of the decision that the facts taken into account by the employment tribunal were, essentially, that the appellant absented herself from work, without notifying the respondent, for a period of four months from 1 October 1997 to 2 February 1998. During this period the respondent was in the dark as to the reason for the appellant's absence, despite having made every effort to get in contact with her. It was essentially on the basis of those short facts that the tribunal held that the appellant was fairly dismissed, dismissal in those circumstances being within the range of reasonable responses open to a reasonable employer.
51. That is essentially a finding of fact with which we can only interfere if that was a perverse conclusion which no reasonable tribunal could have come to. In that regard we accept the respondent's submission that what matters is whether the decision under appeal was a "permissible option" that was open to the employment tribunal. The fact that the appellate tribunal would have reached a different conclusion on the facts is not a sufficient ground for allowing an appeal: see the judgment of Balcombe LJ in Duffy's case, cited above, at 19-20, referring to Melon and others v Hector Powe Ltd [1980] IRLR 477 at 479, 12 and Piggott Brothers & Co Ltd v Jackson and others [1991] IRLR 309 at 312, 17.
52. As regards the appellant's submissions, we observe, first, that there is no finding by the tribunal that Ms Clarke was ignorant as to the procedures to be followed in case of sickness absence. On the contrary the tribunal found as a fact that Ms Clarke had a copy of the sickness procedure (paragraph 19(a)). Secondly, it is abundantly clear that Ms Clarke went to Jamaica for four months without informing the respondents of her whereabouts, without providing any medical certificates, and without providing any explanation for her absence, in contravention not only of the sickness absence reporting procedures but also of the normal responsibility of an employee not to be absent from work without explanation. Thirdly, the tribunal did not find that Ms Clarke had any credible excuse for acting as she did. Fourthly, the tribunal found that in so acting Ms Clarke did repudiate her contract of employment (paragraph 22), albeit that the respondent did not accept that repudiation until later.
53. In these circumstances we do not consider that the tribunal's approach to the question of the fairness of Ms Clark's dismissal can be regarded as perverse. The tribunal's conclusion that the simple fact of absence for work for four months without in any way communicating with the employer was a sufficient basis for the dismissal, in the sense that such dismissal was within the range of responses open to a reasonable employer, was in our view a conclusion to which the tribunal was entitled to come. We do not think that such conduct can be characterised as a "mere" failure to follow sickness absence reporting procedures, as the appellant contends. In our view the employee's obligation to attend work, or provide the employer with a proper explanation for his absence, is a fundamental aspect of the employee's responsibilities. The breach of that obligation leaving the employer in ignorance of the employee's whereabouts for a period of four months cannot be said to be an insufficient reason for a reasonable employer to dismiss the employee concerned.
54. The fact that the appellant subsequently produced medical certificates showing that, despite her absence in Jamaica, she had a genuine medical reason for being off work, does not alter the fact that she did absent herself for a period of four months without obtaining her employer's permission or providing any other explanation.
55. As to the fact that, following receipt of the certificates, the respondent intimated its intention to proceed to a sickness absence review and a disciplinary hearing which, in the event, did not take place it is true that in many cases a dismissal will be held to be unfair if the relevant disciplinary procedures are not followed. However, there is no absolute rule to that effect. It is for the tribunal to weigh all the circumstances in deciding whether the dismissal was reasonable for the purposes of section 98(4): see Lord McKay of Clashfern in Polkey's case at p 156 C-D, adopting the judgment of Browne-Wilkinson J, as he then was, in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, 97. In the present case, there was no dispute about the fact of Ms Clarke's absence for four months without informing her employer of her whereabouts or supplying medical certificates during that period, and she herself admitted she was 'out of order'. Moreover, the Tribunal found that by her conduct Ms Clarke had already repudiated the contract. Although it is true that the respondent did not communicate its acceptance of that repudiation until 8 May 1998, we do not think that Ms Clarke can reasonably rely, for the purposes of unfair dismissal, on the disciplinary provisions of the contract which she herself had already repudiated. We do not think that the respondent's letter of 16 March 1999 can be regarded as a waiver of Ms Clarke's repudiation.
56. In these circumstances we do not consider that the tribunal can be said to have acted perversely in concluding that the respondent was fairly entitled to dismiss Ms Clarke on 8 May 1998, without any further hearing, for the reason given, namely her undisputed absence from work for four months without informing her employer.
57. In those circumstances we dismiss the appeal as far as the claim for unfair dismissal is concerned.