Gamble v BE Aerospace [2010] NIIT 7348

THE INDUSTRIAL TRIBUNALS

CASE REF: 7348/09

CLAIMANT: Thomas Derek Gamble

RESPONDENTS: BE Aerospace

Certificate of Correction

The date and place of hearing recorded at the bottom of page 7 of the decision issued on 24 November 2010 should read as follows:

Date and place of hearing: 1 September 2010, Belfast

Chairman: __________________________

Date: ______________________________

THE INDUSTRIAL TRIBUNALS

CASE REF: 7348/09

CLAIMANT: Thomas Derek Gamble

RESPONDENT: B E Aerospace

DECISION

The unanimous decision of the Tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Ms Petra Sheils

Members: Mr Alan Henry

Mr Brendan Heaney

Appearances:

The claimant appeared and represented himself. He was assisted by his son who attended as note taker.

The respondents were represented by Mr Peter Bloch of the Employers Engineering Federation.

THE CLAIM AND THE RESPONSE

1. The claimant lodged a claim form on 3 November 2009 alleging that he had been unfairly dismissed.

2. The respondent presented a response on 3 December 2009 denying that they had unfairly dismissed the claimant and stating that the claimant’s dismissal was in compliance with the statutory procedures and was fair in all the circumstances of the case. The respondent’s response stated that the claimant had been dismissed for failing to return to work when fit to do so.

SOURCES OF EVIDENCE

Witnesses

3. The Tribunal heard from the claimant.

4. For the respondent the Tribunal heard from Ms Jill Gordon, Human Resource Manager, and Mr Stuart McKee, Business Unit Manager.

The Facts

The Tribunal found the following facts agreed and proven on a balance of probabilities;

5. The claimant, whose date of birth is 21 September 1947, was employed by the respondent as a production operative from 15 February 2002 until his dismissal on 18 September 2009.

6. In March 2009 there was a dispute between the claimant and the respondent that ultimately lead to the claimant being suspended on full pay on 23 March 2009 and on that day being escorted from the respondent’s premises.

7. The details of this dispute were not before this Tribunal. However the claimant attended a disciplinary hearing in respect of the dispute on 24 March 2009. This meeting had to be rescheduled for a number of reasons. On 26 March 2009 the claimant attended his general practitioner who gave him a sick line citing work related stress and covering a period of two weeks from 23 March 2009. Another disciplinary meeting was scheduled for 1 April 2009.

8. The claimant was then invited to attend the respondent’s occupational medical health advisor on 30 March 2009. However by letter received by the respondents on 30 March 2009 the claimant advised the respondent that he would not be able to attend either this appointment or the rescheduled disciplinary appointment.

9. The claimant was subsequently advised that his failure to attend the occupational health advisor had resulted in the respondent sustaining non productive costs. The claimant was disciplined for this failure to attend.

10. The claimant disputed the charge and stated that his colleague had confirmed that he had delivered the claimant’s letter advising the respondent that he would not be able to attend the occupational medical appointment at 9.05 am on the 30 March 2009.

11. Subsequently the claimant received two letters from the respondent dated 5 April 2009. These indicated that he was being issued with two final written warnings; the first of these was in relation to the claimant’s failure to obey a reasonable work request and the other was in relation to his failure to attend the occupational health advisor.

12. The claimant again attended his general practitioner on 6 April 2009 who prescribed sleeping tablets, stating that the claimant should attend for further review some days thereafter. At the hearing the claimant made it clear that he believed that his general practitioner agreed with his own view that he was not fit to return to work

13. On 9 April 2009 the claimant attended the respondent’s occupational health advisor, Ms Alison Vincent. In her subsequent report Ms Vincent indicated she had assessed the claimant and noted the circumstances surrounding his sick absence. Ms Vincent also noted that the claimant’s sick line was due to expire at the beginning of May.

14. Ms Vincent’s report indicated that the claimant was fit to attend disciplinary meetings and added that, in her opinion, the claimant’s absence was a result of work related issues and not as a result of medical incapacity. Ms Vincent also stated that the claimant, in her view, would remain absent from work until his work issues were resolved to his satisfaction. Ms Vincent recommended that the respondent meet the claimant as soon as possible so that the issues between them could be resolved.

15. The claimant subsequently attended an occupational health consultant, Dr Philip McCrea, on 30 April 2009. Dr McCrea’s report indicated that he believed the claimant had developed an “adjustment reaction” to his situation at work which was not a medical problem amenable to medical solution. Dr McCrea went on to note that the secondary effects of this problem were being managed by a period of absence and by medication but that ultimately the situation would only resolve itself if the primary issues between the company and the claimant were resolved. Dr McCrea did not accept that the claimant was medically unfit for work. Dr McCrea’s report also stated “however at the same time it seems that the company is not in a position to do anything to engineer a return to work because Derek does not intend to return to work for the company”.

16. Subsequent to this report Ms Gordon, the respondent’s human resource manager, contacted the claimant on 12 May 2009 and invited him to attend the appeal meeting on 14 May 2009. In that telephone call the claimant advised the respondent that he would not be available for any such meeting until he had spoken to his legal representative, following which he would contact the respondent to arrange a meeting.

17. As the claimant did not contact the respondent that same day the respondent wrote to the claimant on 14 May 2009 inviting him to attend a meeting with Ms Gordon on 20 May 2009. The claimant left a voice mail with the company on Monday, 18 May stating that he was unable to attend any meetings until he had met his legal advisor on 19 May 2009. Subsequent to this the respondent contacted the claimant on 20 May to arrange a meeting and the claimant agreed to attend on Friday, 22 May 2009.

18. On 22 May 2009 the claimant contacted the respondent and ultimately spoke to Ms Gordon. The claimant made it clear that he was challenging the respondent’s competence to question him on his medical condition. The claimant also made it clear that he thought that the respondent was unreasonable in expecting him to attend any such meeting to discuss the position.

19. Ms Gordon advised the claimant that the purpose of the meeting scheduled for that day was to discuss the occupational health consultant’s report, its conclusions on the claimant’s fitness to work and its implications for the claimant’s continued employment.

20. The claimant also objected to the fact that the respondent had received Dr McCrea’s report before he had and rejected Ms Gordon’s explanation that as the report had been commissioned by the respondent this was the usual practice. Ms Gordon also explained that as this report had indicated that the claimant was noted as fit to work it was not unreasonable that the claimant’s employer, the respondent, could request a meeting with him to discuss his return to work.

21. During this telephone conversation the claimant refused to attend the meeting as scheduled for that day. When Ms Gordon queried this response, given that the claimant had earlier stated that he would attend, the claimant stated that he had sent in a letter from his own doctor explaining his reasons and also stated that he would not “be coming in “ until all his issues had been resolved. When Ms Gordon asked the claimant how the respondent could resolve his issues if he would not come in to discuss them the claimant replied “no comment”.

22. The respondent received a letter, dated 15 May 2009, from the claimant’s general practitioner who had in turn received and read a copy of Dr McCrea’s medical report. Dr Chestnutt suggested that Dr McCrea’s finding, that the claimant was suffering from “adjustment reaction to the situation at work”, was the basis for his own finding, that the claimant was suffering from “reactive depression”. Dr Chestnutt’s letter was critical of Dr McCrea’s report in that it appeared not to have been based on an objective assessment of the claimant.

23. This letter was then sent to Dr McCrea for his comments. He agreed that his assessment of the claimant was subjective as he had based his assessment solely on the information given to him by the claimant during his consultation with him. Dr McCrea’s comments then noted that Dr Chestnutt had not made any comment on the claimant’s fitness to return to work.

24. The respondent wrote to the claimant on the 6 and 10 August 2009. The first of these letters refuted the claimant’s suggestion that the respondents efforts to meeting the claimant to resolve the issues between them was unreasonable and advised him that in view of the opinions that had been received from both occupational health advisors, that the claimant was fit to work that the claimant was to report for work at 8.00 am on Monday, 10 August 2009. The letter added that if the claimant did not return to work as instructed that the respondent would consider disciplinary action in relation to this that could ultimately lead to his dismissal.

25. The second letter, dated 10 August 2009, noted that the claimant had not turned up for work as instructed and without reason and advised the claimant that he should attend a disciplinary meeting on 13 August 2009. The letter advised the claimant that in the event that this meeting deemed his failure to turn up for work gross misconduct for failing to carry out a reasonable work instruction when medically fit to do so he could be liable to summary dismissal.

26. The claimant did not attend nor did he give the respondent any notice of his not attending.

27. By letter dated the same day, 13 August 2009, the respondent wrote to the claimant and advised him that they had again rescheduled the meeting, this time for the 17 August 2009. The respondent also asked the claimant to advise them of any accommodations he would like to have considered that would facilitate his attendance. The letter also advised the claimant that if he failed to turn up at the meeting that the respondent would proceed to deal with the matter in his absence and advise him of the outcome.

28. The claimant failed to turn up for this meeting and by letter dated the 18 August 2009 the respondent advised the claimant that the disciplinary meeting had proceeded in his absence and that the respondent, after due consideration, had decided to terminate his employment for gross misconduct, for his failure to act on a reasonable instruction. The letter advised the claimant of his right of appeal this decision within five working days, before the end of the 26 August 2009.

29. In response to this the claimant wrote to the respondent and stated that, in consultation with his general practitioner and his Legal Advisor, he could only give his considered opinion of their correspondence after the 1 September 2009, as his Legal Advisor was on holiday. In the event no appeal was lodged.

The Law

30. Unfair Dismissal

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 an employee is dismissed by his employer if (and, subject to paragraph (2) and Article 128, 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 principal 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.”

Article 130(4) goes on – “Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case”.

Case Law

31. The Tribunal considered the following case law:-

Iceland Frozen Foods Limited v Jones 1993 ICR 17,

British Homes Stores Limited v Burchill 1978 IRLR 379 EAT

and the guidance set out in the Court of Appeal in Rogan-v-South Eastern Health and Social Care Trust (2009) NICA.

The Tribunal’s Conclusions

32. The Tribunal concluded that the claimant had not been unfairly dismissed. In reaching this conclusion the Tribunal took into account the fact that the medical advices received by the respondent consistently indicated that the respondent should seek expeditiously to resolve the claimant’s original disciplinary matter and that the same advices indicated that the claimant was not suffering any medical condition that would either prevent his attendance at any disciplinary hearings or preclude his returning to work.

33. The Tribunal concluded that the respondent had sought to resolve the disciplinary matters between themselves and the claimant as expeditiously as they could, often sending a letter within hours of telephone conversations they had had with the claimant or within hours of meetings to which the claimant had refused to attend. The Tribunal noted the numerous letters sent to the claimant, each properly setting out the respondent’s position and carefully advising the claimant of its next step and the reasons for it.

34. However, to some extent the Tribunal accepted the genuineness of the claimant’s feeling that he was being “bombarded” by the respondents whose attempts to resolve the matters caused the claimant sometimes to receive double correspondence and telephone calls on the same day. The Tribunal particularly noted the respondent’s insistence on hand delivering the correspondence and accepted that this did create for the claimant a sense of his being put under pressure.

35. However, the Tribunal also noted that each letter and note of telephone conversations seen by the Tribunal, all of which were accepted by the claimant, were written in a supportive, non-combative tone.

36. The Tribunal also noted that where the claimant offered any reason for his non attendance at meetings the meeting was re scheduled to accommodate the claimant and in those letters inviting the claimant to meetings the respondent offered to put in place any accommodations that would facilitate the claimant’s attendance.

37. Accordingly the Tribunal could not fault the respondent for its assiduous attempts to resolve the issues between the parties, particularly as both the claimant’s and the respondent’s medical advices indicated that the claimant was suffering from an adjustment reaction and or stress as a direct result of his work situation. Therefore it was in the interests of both the respondent and the claimant that these issues would be resolved as quickly as possible and this is what the respondent sought to do.

38. The Tribunal noted that even at the hearing the claimant believed that his own general practitioner considered him unfit to return to work. However, the Tribunal noted that Dr Chestnutt’s letter did not state this to be the case. The Tribunal also noted that the claimant was personally advised on several occasions by the occupational health advisors of their opinion that he was fit to return to work and he was also told on several occasions that the respondent was accepting and acting on those advices, thereby requiring him to return to work. The Tribunal concluded that the claimant had no basis to sustain his belief that he had been deemed unfit for work.

39. The Tribunal noted that when the claimant suggested to them that there was a divergence in opinion between the claimant’s general practitioner, Dr Chestnutt, and the medical advices they received from Dr McCrea, the respondents sought Dr Chestnutt’s views and comment. Dr Chestnutt’s reply stated that it was his opinion that the claimant was suffering from stress and depression as a result of his work situation. The Tribunal concluded that in doing this the respondent had acted fairly towards the claimant in giving his general practitioner the opportunity to state the claimant’s case that he was unfit for work. However Dr Chestnutt’s letter did not state that the claimant was unfit to return to work.

40. In view of its findings the Tribunal concluded that the claimant had not been unfairly dismissed by the respondent.

Chairman:

Date and place of hearing: 31 August 2010, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gamble v BE Aerospace [2010] NIIT 7348_09IT (24 November 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/7348_09IT.html Cite as: [2010] NIIT 7348_09IT, [2010] NIIT 7348_9IT

Industrial Tribunals Northern Ireland Decisions