THE INDUSTRIAL TRIBUNALS

CASE REF:	223/08

CLAIMANT:			Gavin Joseph Divin

RESPONDENT:		Royal Mail Group Ltd

DECISION
The unanimous decision of the tribunal is that the dismissal of the claimant was not unfair and that his claim fails accordingly.

Constitution of Tribunal:
Chairman:		Ms P Sheils
Members:		Ms M J McReynolds
			Mr P Killen

Appearances:
The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O’Hare, Solicitors.
The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

The claim and the defence

1.	The claimant lodged a claim on 23 January 2008.  The claimant claimed that his dismissal due to his attendance record was unfair.  

2.	By response lodged on 20 March 2008 the respondent accepted that they had dismissed the claimant but denied that the dismissal was unfair.  

Issue at Tribunal

3.	The issue at this Tribunal was:-

“Whether the respondent’s dismissal of the claimant for his failure to meet the respondent’s attendance standards amounted to ‘some other substantial reason of a kind such as to justify the dismissal of an employee ... ‘ under Article 130 of the Employment Rights (Northern Ireland) Order 1996 and that, if so, whether that dismissal was fair or unfair.”

Sources of evidence

           Witnesses

4.	On behalf of the claimant the Tribunal heard from the claimant and from Mr Glen Flanagan.

5.	On behalf of the respondent the Tribunal heard from :-

Mr John Ferry, Delivery Office Manager of the Londonderry Delivery Office at the time of the dismissal.

Mr James McCreight, Customer Service Adviser – Appeals Manager at the time of the dismissal.

Documents

6.	The Tribunal was furnished with two bundles of evidence totalling 930 pages.  

Submissions

7.	The Tribunal received and heard submissions from both counsel. The Tribunal also received numerous other documents during the hearing.

Findings of fact

8.	Having considered the oral and documentary evidence before it, the Tribunal found the following facts either admitted or proved on a balance of probabilities.

9.	The claimant commenced working with the respondent in January 1997.  He was employed as an Operative Postal Grade, colloquially known as a Postman.  The claimant was based in the Delivery Office in Londonderry.  The claimant was dismissed on 17 November 2007 for his failure to maintain Royal Mail standards of attendance.  

10.	The respondent, Royal Mail, had an attendance procedure which consisted of three stages to which different standards of attendance applied.  The stages were progressive and are designed to assist employees maintain appropriate attendance patterns.  There are 3 discrete stages in this attendance procedure and these are set out as follows:-

Stage 1

This is triggered if there have been four absences or one 14 day absence in a 12 month period.  At this stage the employee is asked to attend an interview with his manager and required to give an explanation for his absences.  If deemed appropriate, the employee is issued with a Stage 1 Warning.  

Stage 2

This is triggered if there are a further two absences or a single absence of 10 days in the subsequent six month period after the Stage 1.  At Stage 2 the employee is again interviewed and a Stage 2 Warning may be issued.  

Stage 3

This is called ‘dismissal stage’.  An employee reaches this stage if he incurs a further two absences or a single absence of 10 days or more within any six months after a Stage 2 Warning has been issued.  At this stage the employee is again called to interview where his absence is discussed.  At this stage there is a ‘presumption of dismissal’, a general, though not absolute, rule that dismissal will be the consequence.

11.	Although the trigger points in the absentee procedure are objective the process itself was not completely rigid.  The process had an inbuilt flexibility covered by its ‘approach to individuals’.  This stated:-

(1)	That each case must be treated on its merits, taking into account issues such as –

		length of service; and

		nature of work.

(2)	The Royal Mail attendance standards are designed to ensure consistency but flexible enough to be relaxed where the merits of the case justify it.

12.	A tenet of the attendance procedure was that absences due to sickness are assumed to be genuine.  Additionally, there were some mitigating circumstances that could be considered sufficient to discount the period of absence.  These included accidents that occurred at work and illnesses which were the result of underlying medical conditions.  

13.	In a document entitled ‘Guidance for Managers’, which was not part of the agreed attendance procedure, it stated clearly that absences for injuries resulting from engaging in hazardous sports were not to be considered as ‘mitigating circumstances’. It was accepted by the claimant that at an earlier previous attendance performance interview he had been advised that injuries incurred playing football would not be considered as “mitigating circumstances” It was also an agreed tenet of the attendance procedure that “the best indicator of future attendance is past attendance.” 

14.	The claimant first triggered Stage 1 in January 2003 then again in May 2004 and again in July 2005 and again in November 2005.  On none of these occasions was the claimant referred to Stage 2.  The claimant was absent for a further three periods totalling 18 days during which he received another Stage 1 Warning.  For the period of absence in December 2006 the claimant triggered a Stage 2 and received a Stage 2 Warning. 

15.	The Tribunal had sight of the claimant’s absence report.  It was accepted by the respondent that this absence record contained a number of incorrect entries.  These were corrected prior to the dismissal of the claimant.  However, it was also accepted by the claimant that despite these corrections the claimant had triggered Stage 1, 2 and 3 of the attendance procedure as stated above.  

16.	The claimant was absent for a further two periods in May 2007 totalling 24 days and on 6 June 2007 the claimant triggered Stage 3.  The claimant signed a consent form facilitating the respondent’s obtaining an Occupational Health report from their provider, Atos Origin.  This report was sought by Mr Paul Devlin, Delivery Office Manager in Londonderry Delivery Office.  Mr Devlin’s request was that Atos should examine the claimant in relation to a hairline fracture of his left leg close to his hip that had been recently confirmed, that his attendance was of concern to the respondent and asked Atos to answer the following specific questions:-

(1)	Is the employee fit to perform indoor sorting?

(2)	Is the employee fit to prep mail?

(3)	Is he fit to drive and carry a pouch of mail?

(4)	What are his capabilities at present time given his condition?

Atos furnished their report on 2 July 2007.  The report indicated the claimant was having ongoing problems with his left ankle and hip, that physiotherapy may aid resolution, that the claimant was coping with work to date and that ‘considering all the underlying medical evidence the claimant was currently in most suitable delivery role for his condition.  I would suggest and ‘wait and see approach in this case’.  

17.	The report concluded that the claimant was fit to work subject to suggestions that a chair be made available to the claimant for sorting and prepping his work and that a higher seated vehicle be provided to him for the delivery aspects of his work.  

18.	Mr Ferry stated that he had become aware of the fact that the claimant had triggered the Stage 3 through a computer generated process and on realising this had commissioned a second report from Atos origin on the 4 July 2007. This second report dated 18 July was drafted after the consulting occupational physician, Dr Ponnusamy Manickarajah, had spoken to the claimant by telephone. This report responded to specific questions in the request from Mr Peter McLaughlin, a manager at Royal Mail which addressed the claimant’s current condition, his long term prognosis a review of his absence record and confirmation that ill health retirement was not appropriate.

19.	The claimant received a letter dated 17 August 2007 from Mr John Ferry, Acting Delivery Service Manager.  This letter advised the claimant that in view of his absence record consideration was now being given to his dismissal and inviting him to attend a formal interview to put forward reasons why he should not dismissed.  The letter advised the claimant that he could be accompanied by his trade union representative or a work colleague.

20.	The claimant attended the interview on 21 August 2007.  He was accompanied by Mr Reddon, his trade union representative.  The meeting commenced at 7.30 am and concluded at 8.00 am.  At the meeting, Mr Ferry made corrections to the claimant’s absence record, as directed by the claimant.  Mr Ferry then questioned the claimant in respect of his most recent periods of absence, 8 May 2007 to 14 May 2007 and 17 May 2007 to 2 June 2007.  In respect of the first of these the claimant indicated that his absence was due to his attendance at hospital for an operation on his nose due to a sinus problem.  In relation to the second period of absence the claimant indicated that this has occurred as a result of having a pain in his leg, subsequently confirmed as a hairline fracture sustained playing football.

21.	Mr Ferry then put to the claimant that his attendance record during the period of his 10 year service was unsatisfactory.  The claimant stated that he felt that he just been unlucky due to injuries sustained by him playing sport.

22.	Mr Ferry asked the claimant if there were any mitigating circumstances the claimant wished Mr Ferry to consider.  The claimant indicated that in his view the vast majority of his absences had been due to injuries sustained while playing football.  The claimant went on to state that all his injuries had been genuine.  Mr Reddon added that the claimant was a worker who had carried out his duties without any problems or issues.

23.	At this point Mr Ferry reminded the claimant that the genuineness of his absences was not in question but rather the ability to attend for work on a regular basis and to meet the standards of attendance required by Royal Mail.  

24.	At the interview, Mr Ferry indicated that he would forward to the claimant a copy of the interview notes and on receipt from the claimant of the signed copy of them he would then make a decision with regard to any formal charges being placed against him.  

25.	On receipt of the copy interview notes the claimant wrote to Mr Ferry stating that it had been a corrective sinus operation that had triggered Stage 3 of the attendance procedure, that the inadequacies and inaccuracies of recording the reasons for his absence contributed to Stage Warnings being triggered, that one of the absences from work was an injury that had occurred at work. The claimant also sought to  reassure Mr Ferry of his diligence and efforts to return to work by reminding him  that he was continuing to attend regular physiotherapy provided to him by Royal Mail and that this and the corrective surgery were evidence of his positively addressing his medical problems.

26.	At the end of the interview Mr Ferry indicated that he would forward to the claimant a copy of the interview notes and on receipt from the claimant of a signed copy of them that Mr Ferry would then make a decision with regard to any formal charges being placed against him.

27.	By memo dated 3 September 2007, Mr Ferry wrote to the claimant inviting him to a further interview to advise him of his decision whether to dismiss him or not.  This interview was arranged for 7 September 2007 at 3.00 pm and again the claimant was advised that he could be accompanied by his trade union representative or a colleague.

28.	This interview took place on 7 September 2007.  Mr Ferry was in fact on holiday on that date but returned from his holidays specifically to deal with the interview. The claimant suggested that Mr Ferry’s return from holiday was sinister and demonstrated a determination to dismiss the claimant. However the Tribunal accepted Mr Ferry’s account that he had returned from annual leave to deal with the matter as he had not wanted to prolong the process for the claimant.  

29.	The decision to dismiss the claimant was conveyed to him at the meeting on 7 September and in a follow up memo like letter of the same date which also advised the claimant that he had a right to appeal against the decision to an independent appeals manager.

30.	By memo dated 3 September 2007 Mr Ferry wrote to the claimant inviting him to a further interview to advise him of his decision whether to dismiss him or not.  This interview was arranged for the 7 September 2007 at 3pm and again the claimant was advised that he could be accompanied by his trade union representative or a colleague.

31.	This interview took place on the 7 September 2007.  Mr Ferry was in fact on holiday on that date but returned from his holiday specifically to deal with the matter.  At the meeting of 7 September 2007 Mr Ferry dismissed the claimant.  The dismissal was confirmed in a document entitled “Stage Three Notes of Conclusion” and dated 7 September 2007.  

32.	In this document Mr Ferry indicated that he had decided to dismiss the claimant because his attendance had failed to meet the standards expected of him.  It also indicated that Mr Ferry had taken certain factors into consideration including the fact that despite previous warnings the claimant had been unable to sustain required attendance standards and that Mr Ferry had no confidence that the claimant would be able to meet the required standards in the future.  

33.	The document also recorded the fact that Mr Ferry had fully accepted the claimant’s argument that the surgery in respect of the claimant’s ongoing sinus problem had been “corrective” and that Mr Ferry had discounted the period of absence from contributing to his attendance record.  

34.	Mr Ferry made it clear that as the claimant’s absence from 17 May 2007 to 2 June 2007, a total of 17 days of itself triggered the Stage Three warning and on the basis that the claimant had been absent due to “leg pain” as a result of a hairline fracture as opposed to post operation pains and indicated that there was not a similar mitigating circumstance in respect of this period of absence.

35.	Mr Ferry noted that while the claimant had raised in mitigation the issue of wrongly reported causes of absence on his attendance record he went on to conclude that “such administrative errors do not have any bearing on the individual ability to change the required attendance standards”.   Mr Ferry also noted that the causes recorded for the claimant’s absences which had been directly taken into account were correct and concluded that the claimant’s attendance pattern showed clearly that he would be unable to maintain the required attendance standards and had no medical condition that might have affected his ability to attend for work regularly.

The claimant was advised that he had the right of appeal.  

Appeal Hearing

36.	The claimant’s appeal was heard on 11 October 2007 by Mr Jim Mc Creight, Appeals Manager. The claimant was accompanied by an official from the Communication Workers’ Union.  At the appeal hearing Mr McCreight reviewed the claimant’s absence record from 2003 through to June 2007.  Mr McCreight also reviewed Mr Ferry’s handling of the Stage Three procedure and his ultimate decision.  

37.	Mr Mc Creight noted the claimant’s objections (and basis of appeal) included the fact that his absence record had been incorrectly written up, that Mr Ferry had concluded there were no mitigating circumstances, that Mr Ferry had taken the claimant’s case over from Michael McKernan and had come back from his annual leave specifically to deal with the claimant case.  

38.	Prior to his appeal hearing the claimant had written to a Mr Michael Kennedy in Royal Mail. The claimant referred to a number of points that he had previously made in relation to his dismissal and stated that, additionally, Mr Ferry’s conclusions were all the more perverse in light of the fact that he had telephoned the claimant on two occasions while the claimant was off work and advised the claimant “not to worry about it” when the claimant expressed concerns about his prolonged absence from work.  The claimant stated that Mr Ferry had gone on to advise him “don’t be going back to work too early, you could end up damaging your leg or could have to go off again”.  

39.	The claimant stated that Mr Ferry had telephoned him a second time during the same period of absence and when the claimant advised him that he was no longer using crutches Mr Ferry had asked the claimant how he would feel about coming into work for “light duties”.  When the claimant enquired as to the type of duties and Mr Ferry had stated “collections” the claimant stated that he would be unable to do this work but went on to confirm that he would be able to come in and perform “surcharging and conveyance work”. The claimant added that Mr Ferry had not denied either of these conversations when the claimant had raised them with him at the meeting of 7 September 2007.  

40.	Additionally in this letter the claimant advised Mr Kennedy that another member of management, Mr Paul Devlin, had also telephoned the claimant to enquire when he would return to work.  When the claimant had stated that he was anxious about a possible Stage Three warning being issued to him Mr Devlin had said  “don’t worry you should be ok. These things are designed for people who abuse their sick leave and if you have a genuine reason you will be ok.” 

41.	Mr Mc Creight was aware of this correspondence and the allegations in it at the appeal stage and explored these allegations in addition to investigating the other bases of the claimant’s appeal.  

42.	Mr Mc Creight noted that Mr Ferry accepted responsibility for personally processing the claimant’s Stage Three interview on the basis that as “dismissal manager” Mr Ferry regarded it as his responsibility to conduct such and that although he had planned an annual leave period for the month of September 2007 had decided to attend the meeting with the claimant on the 7 so as not to keep the claimant waiting on the decision beyond the usual 10-14 days of the interview. 

43.	Mr Mc Creight also noted that Mr Ferry confirmed that he had discounted the claimant’s operation in respect of his most recent sinus operation as it had not been an issue with regard to the “triggering of the stages”.  Mr McCreight also accepted Mr Ferry’s reason for his comments during the telephone call to the claimant which were that Mr Ferry had been referring to the fact that each case is treated on its own merits and that he was not questioning the genuineness of the claimant’s absence and that he would not have wanted him, the claimant, or any employee, to return to work if not fit to do so.  

44.	Mr Mc Creight noted also that Mr Ferry had not regarded the claimant’s offer to return to work to do light duties as “mitigating circumstances” in relation to his absence but instead saw that this offer was directly connected to the claimant’s return to work.  

45.	Mr Mc Creight also took account of the response from Mr Paul Devlin in relation to his remarks as stated by the claimant  which was that Mr Devlin had denied the remarks attributed to him by the claimant but rather that he had told the claimant that he was “not  in a position to give the claimant a clear cut answer as to if the Stage 3 would be issued or not” and had added that “Stage 3 interviews were an opportunity for all aspects of the individuals record to be looked at before a decision was made on the stage being issued or not”.

46.	The Tribunal noted Mr Ferry’s evidence in relation to his comments and his overall demeanour and approach to his work and accepted that he had meant the comments only at their face value.  The Tribunal accepted that Mr Ferry did not make these comments to encourage the claimant to believe that his early return to work would protect him against the issuing of a Stage 3 trigger.  On the other hand the Tribunal heard no evidence from Mr Devlin and could not conclude that his response to Mr Mc Creight’s questions was genuine or not.

47.	The Tribunal noted Mr Ferry’s evidence in relation to his comments and accepted that he had meant them at their face value.  The Tribunal accepted that Mr Ferry did not make these comments to encourage the claimant to believe that his early return to work would protect him against the issuing of Stage 3 trigger.  On the other hand the Tribunal heard no evidence from Mr Devlin and could not conclude in the same way from an analysis of Mr Devlin’s demeanour and style that the near formulaic style of his response to Mr Mc Creight’s questions was genuine or not. 

48.	On 20 November 2007 Mr Mc Creight issued his appeal findings and conclusions which indicated that the claimant’s appeal had not been successful and that the original penalty stood. 

49.	At the hearing the claimant submitted that the respondents’ had unfairly failed to take his football injuries into consideration as “mitigating circumstances” sufficient to discount periods of absence or avoid dismissal as a consequence of that absence.  The claimant stated that this was particularly unfair on the basis that the claimant was an active participating member of the Royal Mail football team.  

50.	The respondents refuted the claimant’s suggestion that his membership of and playing for the team which wore the Royal Mail insignia did represent Royal Mail or that this amounted to his playing directly on behalf of the respondent as employer or that football injuries, however incurred, should be taken into account as “mitigating circumstances”. The respondents argued that the team for which the claimant played was privately funded and was therefore unconnected to Royal Mail as employer.  

51.	  Also at hearing the claimant alleged the respondent had failed to conduct a return to work interview and that this had amounted to a procedural unfairness in their approach to the decision to dismiss him so as to undermine that decision.  A return to work interview subsequent to every absence was recommended on the management checklist in the Guide to Managers, attendant on the managing absence policy.  

52.	The purpose of the return to work interview was to support an employee’s return to work and its role within the managing absence policy was to identify causes of concern that could be addressed to avoid further absence.  Additionally the notes from any return to work interviews were considered as part of the management checklist of all documents sent to transactions services for consideration before Stage 3 is triggered.  

53.	The Tribunal noted that although no such return to work interview was conducted with the claimant the Tribunal found that the failure to do so and the failure to have generated a document which formed part of a check list did not amount to a procedural step in the claimant’s dismissal that had not been adhered to by the respondents.
           
          The comparators

54.	The claimant stated that the respondents’ treatment of him was unfair by reason of being inconsistent and in particular with reference to named comparators being Joseph Reddon, Sean Cusack, Sean Slavin, David Harkin and Conor O’Connor.  

55.	The Tribunal received and examined detailed documentary evidence in respect of these comparators and heard and considered submissions from the claimant’s representative that the treatment of each had been more reasonable and more favourable than that meted out to the claimant in circumstances which should be considered similar if not identical to the claimant’s.  The claimant’s representative went on to submit that a decision not to dismiss these men had been taken in circumstances where their absence records were at least as bad if not worse than the claimant’s.  

56.	The respondent’s representative submitted that the circumstances surrounding each of the individuals concerned were totally different to those involving the claimant.

57.	The Tribunal noted the circumstances of each of the comparators to which it had been referred. The Tribunal noted that although there could be a superficial view that the absence record of at least some of these comparators was “as bad”, or similar, to the claimant’s, the circumstances of each were different from those of the claimant’s. The Tribunal also noted that the exercise of the decision to dismiss an employee was a discretionary matter and that in each case the respondents could consider the relevant circumstances of the individual concerned.  

58.	A logical conclusion from this is that while there may not be a consistency of outcome this will not be evidence to undermine a consistency of approach that could amount to evidence of unfairness.  Indeed if this argument were sustained it might suggest that the respondents were failing in their obligation to approach individual cases on an individual basis. 

59.	Accordingly the Tribunal accepted that the differences in outcome in relation to the chosen comparators did not demonstrate an inconsistency in approach that would undermine the decision taken in the claimant’s case and circumstances so as to make that decision unreasonable or unfair by reason of inconsistency.

          The Law

60.	The Tribunal considered the relevant statutory provisions and case law.  

Statutory provisions
The Employment Rights (Northern Ireland) Order 1996 provides at Article 126,  Paragraph 1:-
                    
“An employee has the right not to be unfairly dismissed by his employers.”

The Order goes on to state at Article 127, Paragraph 1(C):-

“For the purpose of this Part if the employee is dismissed by his employer if and subject to Paragraph 2 and Article 128 and only if –

(a)	the contract under which he is employed is terminated by the employer (whether with or without notice).”
Article 130 of the Order goes on to state that:-

“(1)	In determining ... whether the dismissal of an employee is fair or unfair it is for the employer to show –

(a)	the reason or if more than one (the principle reason for the dismissal); and

(b)	that it is either a reason falling within Paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

The Tribunal also took into consideration relevant case law and legal texts and in particular those to which it was specifically directed by counsel, namely:-

Harvey, Section D 
International Sports Co Ltd v Thompson [1980] IRLR 340
Wilson v Post Office [2000] IRLR 834
Spence v Royal Mail EATS/0040/03
Sainsbury’s Supermarkets v Hitt [2003] IRLR 23 CA
Polkey 

          The Tribunal’s Conclusions

61.	It was the respondent’s case from the outset that the dismissal of the claimant fell to be considered as a “capability” issue rather than a “conduct” issue. 

62.	On the other hand the claimant sought to rely on the fact that the reasons for his dismissal were unfair on the basis that the respondents had failed to consider circumstances of his absence that would have militated against dismissal –including the that fact that the reasons for the absences were genuine and outwith his control – and on the fact that the respondents failed to take account of the fact that he had been a consistently good and solid worker with an unblemished work record.

63.	The Tribunal accepted that the effect of the absence management procedure was that, notwithstanding the otherwise “good conduct” or reliability of an employee, the failure to meet attendance standards, of itself, could trigger Stage 3 and ultimately lead to dismissal. This is in essence the difference between a “capability” type dismissal and a “conduct” type dismissal. In capability cases even “good” employees can fall below the standards required of “capable”, those deemed to be unable to meet the contractual requirement of sufficient attendance. 

64.	The Tribunal rejected the respondent’s contention that the claimant had not played football for his “employer”.  The Tribunal accepted that a team, howsoever funded, wearing the Royal Mail insignia, represented Royal Mail.  However the Tribunal did not conclude that the respondents had in any way caused or contributed to the claimant’s injuries by his playing on the Royal Mail team or that they had in any way suggested that these injuries would ever enjoy immunity as “mitigating circumstances”.    

65.	The Tribunal also rejected the claimant’s argument that the respondents ought reasonably to have discounted his absence arising from his football injuries on the bases that football was not a hazardous sport. In reaching this conclusion the Tribunal noted that the claimant had frequently sustained a number of serious injuries during football that seemed to the Tribunal to be reasonably consistent were attendant on football as a hazardous contact sport. The Tribunal also noted that the claimant had previously accepted the respondents’ warning that injuries sustained by playing football would not be discounted as a “mitigating circumstances”.  

66.	The Tribunal concluded that the claimant had been thus warned as to the potentially dire consequences further football injuries could have on his career and had failed to take account of the warnings.   In essence although the claimant had previously been warned that football  injuries would not be discounted he continued to play even after sustaining relatively serious and certainly debilitating injuries thereafter which subsequently gave rise to absences from work that lead to his dismissal.

67.	Accordingly the Tribunal concludes that the dismissal of the claimant was not unfair.

Chairman:

Date and place of hearing: 9-13 & 18-20 March 2009, Belfast		

Date decision recorded in register and issued to parties: