Appeal No.

UKEAT/0431/06/MAA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal On 19 December 2006

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

MS V E BRANNEY MISS S M WILSON CBE

MR A C SMITH

APPELLANT

ROYAL MAIL GROUP PLC

RESPONDENT

Transcript of Proceedings JUDGMENT

Copyright

APPEARANCES

For the Appellant

Mr A C Smith (The Appellant in Person)

For the Respondent

Mr James Tayler (of Counsel) Instructed by: Messrs Bond Pearce LLP Solicitors Darwin House Southernhay Gardens Exeter EX1 1LA

UKEAT/0431/06/MAA

SUMMARY Unfair Dismissal - Reasonableness of dismissal Disability Discrimination - Compensation Employee disabled by kidney-related pain; dismissed for bad attendance record which, in last four years before dismissal, had nothing to do with his disability. Argument that ET had misunderstood the evidence and should have determined it as he wished rejected. Argument that he should have had ill-health retirement rather than dismissal for non-attendance also rejected.

UKEAT/0431/06/MAA

THE HONOURABLE MR JUSTICE LANGSTAFF

1.

This is an appeal from a decision of an Employment Tribunal (ET) at Exeter on 22 May

2006. That Tribunal dismissed complaints by the Appellant that he had been discriminated against on the grounds of his disability and that he had been unfairly dismissed from his employment as a postman. He had been a postman for over 27 years. The reason for his dismissal was his poor attendance record. That is not disputed. Nor is it disputed that the attendance scheme was applicable to him. What is in dispute is whether the ET were entitled to come to certain conclusions about the necessary steps leading to dismissal under the scheme.

The Tribunals reasons 2. The Tribunal found that the Appellant had a disability. This consisted of the abnormal function of his kidneys; in particular, the over-production of kidney stones which led to repeated episodes of pain and sometimes to renal colic, requiring time off work. The Tribunal found that this had a substantial effect on his day-to-day activities and, because it was likely to recur, on balance, held that he therefore met the definition of disablement. The Tribunal however considered that a claim brought under s4(a) of the 1995 Act would not succeed, because the employer, though alerted to the possibility of disability, in fact had no knowledge that the employee was disabled, not least because they had enquired into it and had been told by at least two reputable doctors that that was not the case.

3. There is no appeal here in respect of the disability provisions directly. Instead, the appeal UKEAT/0431/06/MAA -1-

relates to the findings of the ET upon the second part of his claim, that for unfair dismissal. Here, the argument which the Claimant made before the Tribunal was that the employer had wrongly applied the attendance procedures. The scheme provided for three Stages. To reach Stage 1, at which a warning would be given, an employee had to have incurred four absences or absence of 14 days or more within any twelve month period. From Stage 1, the employee might progress to Stage 2 or 3. To reach Stage 2, there had to be a further two absences, or 10 days or more absence, within any six-month period during the twelve months following. A Stage 3 could follow. If after receiving a second stage warning two absences, or a single absence of 10 days or more within any six month period during the following 12 months happened, then dismissal was to be considered.

4. What the Tribunal found was set out at paragraphs 45 and 46 in particular. They read as follows:

45. The claimant specifically argued that on one occasion in 2002 he had a day off for what he claimed were parental duties and that might have been an authorised day had there been any correspondence or documentation to support his claim when it was later considered. There was not and so it was recorded as a days absence for unknown sickness. Had that not been taken into account he would have had one period of absence rather than two to be considered. We do not accept that argument. It was recorded as an absence and there was no reason for Miss Woodward the manager concerned to exclude it. 46. As for the substantial period relating to stress 62 days which ultimately was taken into account in the overall picture, the claimant maintains that it should have been excluded because it was stress which arose from a dispute at work. The grievance in that respect however was not upheld and we find that it could properly have been counted. 47. In our judgment the respondents correctly operated the procedure and had grounds to dismiss in April 2005 at the end of the procedure.

They went on to say that at each stage of the procedure Mr Smith was given proper warnings and the procedure was operated correctly. UKEAT/0431/06/MAA -2-

5. His grounds of appeal against this decision, as elaborated before us in writing in a skeleton argument of 4 December, raise three points. First, he says that the Tribunal was not entitled to come to the conclusion they did, that the employer was permitted to take into account the one day of sickness absence. Secondly, he says that the Tribunal should not have permitted the employer to take into account the 62 days stress-related absence when reviewing the overall attendance record at Stage 3 and allowing that to influence the eventual decision to dismiss. Thirdly, he argues that such was the knowledge that the employer had of the disabilities from which he had suffered from time to time, and in particular his kidney problems, that when they came to dispense with his services this should have been by way of medical retirement and not by way of dismissal without that benefit.

6. As to the first of those, he argues that paperwork is normally produced whenever there is absence. He has shown us pages in a supplementary bundle which demonstrate what is the normal process. This did not occur in respect of the one day which is treated as uncertificated sickness absence. On that occasion he tells us he was in fact on parental leave. He says that he wrote to Miss Woodward on 22 June 2002 about that issue and he complains that the Tribunal misunderstood her evidence about it. She said, he asserts, that the witness said that there had been a computer error. This evidence is not reflected in the Tribunals assessment. If it had been, the Tribunal could not have come to the conclusion it did.

7. For his part, Mr Tayler, who appears for the Respondent as he did below, argues in his UKEAT/0431/06/MAA -3-

skeleton argument that there has been no request made by the Claimant for the Chairmans notes of evidence (as there would have to be in accordance with the practice direction of this Tribunal if an evidential matter such as this is to be raised as a point of law as opposed to a complaint that the Tribunal found the facts in a way which dissatisfied the Claimant concerned).

8. The need for co-operation between the parties and for such a request to be made if there is a continuing dispute is reflected in paragraph 7 of the standard order made on the sift, when a case is allocated to a full hearing. This case fell into that category. Paragraph 7 makes it clear what a litigant should do. The language may be thought legalistic but the meaning is plain. Mr Smith told us that he wrote to the ET asking for a transcript and received no reply. What he did not do, it is plain, is comply with the practice direction here, nor did he comply with the requirements of the order allocating this case to a full hearing. We have no proper basis for determining whether he is right or whether Mr Tayler is right when he maintains that it is Mr Smith who has misunderstood what was said in the Tribunal and not the Tribunal. Appeals to this Tribunal have to be on a matter of law. This is an issue of fact. It must follow that the appeal cannot possibly succeed on this particular ground.

9. We have no doubt that Mr Smith will retain the sense of grievance that he already has about the way in which he was treated. However, we have to consider whether the Tribunal came to a conclusion which was open to them on the evidence which they heard. In our view it cannot be said that they failed to do so.

UKEAT/0431/06/MAA -4-

10.

We turn then to the second matter, that of the 62 days. Mr Smith says that this was

excluded from consideration by Miss Woodward when she dealt with his attendance record under an earlier Stage 2 hearing. From our reading of the papers, confirmed by what Mr Tayler has been able to tell us, we conclude that this was at a stage when he had raised a grievance about the treatment of those 62 days, alleging that they rose as a work-related absence and thus should not be included in the attendance scheme and complaining about the conduct of a manager toward him. It may be because of that that the manager did not take account of the 62 days at that time, but as a matter of fact Mr Smith did in fact have 62 days absence. The question is whether or not the Tribunal was entitled to come to the conclusion it did at paragraph 46. There was an issue about whether Mr Evans, who took the eventual decision to dismiss, was entitled to have at least some regard to the 62 days. The Tribunal felt that he could. That is a judgment which it is open to the Tribunal to make. Whether we would have made the same conclusion or not is beside the point. For there to be an error of law it must be beyond the powers of the Tribunal. This is not; it is plainly within them. It is a matter of factual assessment. There is no error of law here either.

11. The third ground relates to the way in which dismissal might have been effected. Here the answer is again straightforward. This Tribunal hears appeals on matters of law and law only. An Employment Tribunal has a statutory jurisdiction. It is not there to ensure justice between an employer and employee in any respect other than that which the law requires. Although many might applaud a decision to retire a man who had suffered from recurrent illnesses upon medical retirement terms, we do not know of any obligation which an employee can rely upon before an Employment Tribunal to insist that the employer does so. The terms upon which an employer and employee part UKEAT/0431/06/MAA -5-

company are, except in a number of carefully confined instances, not within the scope of statutory requirement. Accordingly, he had no right to require his employers to retire him medically.

12. Moreover, it appears this argument was not one to which his complaint to the ET was addressed. Not being a ground raised below, of complaint about the way in which his employer had acted, it is not open to us on appeal to deal with it. This is so even if we had been persuaded that there was some legislative route which would entitle him to raise the complaint before the Tribunal, see Glennie v Independent Newspaper [1999] IRLR 119 (CA).

13. Accordingly, we have no alternative but to dismiss these appeals. We are conscious that Mr Smith will probably retain his sense of grievance, but as we have endeavoured to explain, our task is not to make the decision for ourselves, but merely to ask whether the ET was entitled, as a matter of law, to come to the conclusions it did. It was. This appeal is dismissed.

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