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THE INDUSTRIAL TRIBUNALS

CASE REF: 929/05

CLAIMANT: JOHN KIRK

RESPONDENT: SOUTH EASTERN EDUCATION AND LIBRARY BOARD

DECISION

The unanimous decision of the tribunal is that the claimant's complaint is dismissed. The tribunal is satisfied on the balance of probabilities that the dismissal of the claimant was not contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Members: Mr Hanna

Mr Currie

Appearances:

The claimant: The claimant appeared on his own behalf.

The respondent: Ms F Lamont, Barrister at Law, appeared on behalf of the respondent, instructed by M Brown, Solicitor.

(1) The claimant lodged a complaint on the 17 June 2005 that he had been unfairly dismissed from his employment on the 22 March 2005 as a caretaker. The respondent contended that the dismissal was on the ground of incapacity, that it had been fair and was in accordance with the provisions for retirement on grounds of Ill Health, which formed part of the terms and conditions of the claimant's employment contained in the respondent's Procedures for the Management of Attendance.

Sources of Evidence

(2) The tribunal received a bundle of documents, which were identified as "R1". The tribunal heard evidence from John Mason and the claimant.

Issues

(3) The issue for the tribunal to determine was (a) the reason for the dismissal of the claimant and (b) whether the respondent's decision to terminate the claimant's employment at that time was "fair" within the provisions of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996, in effect, whether it was a decision that fell within the "band of reasonable responses" having applied that test to the circumstances of this case and the procedure used by the respondent in reaching the decision to dismiss.

The Facts

(4) The claimant was employed as a caretaker at Library Headquarters in Ballynahinch from 1 July 2001. The respondent employs a substantial number of persons in different levels and grades but had essentially one caretaker at the location in which the claimant was based. Throughout his employment with the respondent the claimant had a number of absences from work due to ill health. From December 2003 until March 2004 he had a sustained period of absence due to a back condition. In early January 2005 he was absent from work because of spontaneous nosebleeds and stress. It was not in dispute between the parties that the claimant had been unable to undertake his duties as a caretaker from the 7 January 2005.

(5) The claimant made a telephone call to John Mason of Human Resources on the 2 February 2005. There was divergence between the parties as to whether the claimant's enquiry had been made in respect of requesting information concerning "early " retirement or consideration for "ill health" retirement. The tribunal noted that the handwritten note of the telephone conversation contained notes of the claimant's ailments and the words "early retirement". We heard both the claimant and John Mason give evidence of this conversation. We noted that Mr Mason was experienced in Human Resources and had no prior knowledge of the claimant or his absences when he requested another employee to seek a quote "in relation to Mr Kirk retiring on health grounds". We also took into account the various letters from the respondent to the claimant referring to "your recent request to be considered for early retirement on the grounds of ill-health" which went unchallenged by the claimant at the time. Accordingly the tribunal was satisfied that the claimant made an enquiry about early retirement. Further retirement on health grounds was the only form of early retirement available to the claimant and the tribunal was satisfied the claimant knew this to be the position.

(6) The respondent in accordance with their contractual procedures referred the claimant to a medical adviser Dr Alastair Glasgow, an independent Occupational Physician. An appointment date was obtained, namely 18^th February 2005. A telephone conversation took place between Mr Mason and the claimant on 16 February 2005. At hearing the claimant alleged that during that conversation Mr Mason made specific and implied threats that if he didn't attend the medical the respondent would in effect initiate disciplinary action against him as he had gone to England to his daughters while submitting a sick line to his employer. Mr Mason denied this. The tribunal noted that in the claimant's claim form he complained "my line manager rang me on my mobile and accused me of lying about where I was." The claimant's line manager was Elaine Rice but the respondent did not call her to give evidence. The tribunal was satisfied the respondent was aware that the claimant was in England when the phone calls were made on 16 February 2005, but no threat was made by John Mason of disciplinary action against the claimant. The tribunal having observed both witnesses were satisfied on the balance of probabilities that John Mason did offer to postpone the medical if the claimant desired. The claimant agreed to attend the medical on 18 February 2005.

(7) The claimant attended the medical with Dr Alastair Glasgow on 18 February 2005. The claimant brought to the medical a handwritten letter from his General Practitioner, which stated that he was suffering from "depression and stress related illness. I advised him to take a short holiday in England in the form of occupational therapy in order to alleviate his condition. I can confirm I have spoken to him several times about his illness". Dr. Glasgow's professional diagnosis was not in dispute. Dr Glasgow found the claimant to be "chronically debilitated …on current medical evidence there would be sufficient medical evidence to advise ill health retirement should Mr Kirk wish to pursue that in accordance with your wishes". His employment was terminated with notice by letter dated 22 February 2005.

(8) The letter sent by the respondent dated 22 February 2005 to the claimant outlined the conclusions of Dr Glasgow and advised "In view of Dr Glasgow's advice and at your request the Board proposes to terminate your employment on health grounds with effect from 22 March 2005." The letter also set out the payments the claimant would be entitled to. The entitlements set out did not include any reference to pension payments. There was a specific paragraph that addressed the issue of pensions. The letter advised the claimant, "any decision regarding early release of your pension lies totally …outside the Board's control". A form was enclosed that required the claimant's signature.

(9) The claimant contended at hearing that he had a third phone call with Mr Mason, post the medical with Dr Glasgow, when he indicated to Mr. Mason that he did not request ill health retirement. Mr Mason could not recollect nor did he have any note of a third phone call. The tribunal concluded that if such a phone call had been made it was odd that Mr Mason did not refer to it in his letter dated 22 February 2005. Even stranger the claimant did not respond to that letter dated 22 February 2005 objecting to the continual reference to him requesting ill health retirement when he had told the respondent that this was not the case. The tribunal concluded on the balance of probabilities that they were not satisfied there was a third phone call between Mr Mason and the claimant.

(10) The claimant was advised in the letter dated 22 February 2005 of his right of appeal against the respondent's proposed action. He did not take up the respondent's offer to "discuss the content of this letter" which is again surprising if he was not content with the proposal. The claimant consistently claimed that his failure to appeal was because he thought if he didn't "go along " with the proposal he would be "brought in and disciplined for being out of the country and lose everything". The tribunal, on a balance of probabilities, did not accept this evidence of the claimant. He had obtained a medical from his General Practitioner on 18 February 2005 which could only have been for the purposes of protecting his employment position as it indicated clearly that he was "in England" on medical advice. The respondent had not returned to him the sick lines submitted in respect of his absence. It appeared clear to this tribunal that the claimant wanted early retirement with pension.

(11) The claimant's effective date of retirement was 22 March 2005. A letter dated 10 May 2005 notified the claimant that his claim for early payment of pension had been unsuccessful. On 20 May 2005 he signed and dated a claim form and submitted it to the Office of the Industrial Tribunal and Fair Employment Tribunal by 17 June 2005.

Applicable Law

(12) The tribunal has had regard to the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996. It is for the respondent to show the reason for the dismissal of the claimant; and that it is a reason falling within Article 130 (2) of the Employment Rights (Northern Ireland) Order 1996 or "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held".

(13) The reasons set out in Article 130 (2) encompass amongst others capability, assessed by reference to health or conduct. Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 is the relevant legal provision in determining whether the respondent acted reasonably in treating the claimant's ill health as sufficient reason for dismissal. Where the respondent has established the reason the tribunal must determine whether the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the claimant having regard to the circumstances of this case and it "shall be determined in accordance with equity and the substantial merits of the case". The requirement of reasonableness in Article 130 (4) of the 1996 Order relates not only to the outcome in terms of the decision of the employer but also to the process by which the employer arrived at that decision. An essential principle of natural justice is the right to an unbiased or impartial tribunal. In Iceland Frozen Foods v Jones [1983] ICR 17 the function of the tribunal is summarised as " to determine whether, in particular circumstances of each, the decision to dismiss the employee fell within the band of reasonable responses, which a reasonable employer might have adopted".

Conclusions in light of the facts and law.

(14) The tribunal is satisfied on the balance of probabilities that the claimant's employment was terminated on the ground of incapacity in February 2005, which was a reason falling within Article 130 (2) of the Employment Rights (Northern Ireland) Order 1996. It was a potentially fair reason. The fairness of the decision had to be considered in light of the provisions of Article 130 (4) and the facts found.

(15) The respondent followed an agreed contractual procedure, which was incorporated in to the terms of the claimant's employment. The claimant never recorded in writing any objection he had to any particular part of the procedure. It appeared to the tribunal that the wise and cautious employer would have an employee confirm in writing his wish to be considered for "early" or "ill health" retirement. Such action in this case could have avoided the need for a hearing in regard to this dismissal.

(16) There was no evidence of any breach of the Ill-Health/Retirement procedures found in the respondents document entitled "Procedures for the Management of Attendance". It is clear that irrespective of how an employee comes to be referred for consideration for retirement on grounds of ill health, it will only be granted where the Board's Medical Adviser is of the opinion that the employee is "incapable of carrying out his regular duties due to a medical condition". A medical practitioner, Dr Alastair Glasgow, specialising in occupational health, examined the claimant. The respondent acted on his conclusion that the claimant was "chronically debilitated". There was sufficient medical evidence for Dr Glasgow to consider it appropriate to advise the respondent that the claimant satisfied the pre-conditions for ill health retirement.

(17) The respondent's actions can only be viewed in the context of the information that the respondent had or could have had available at the relevant time. There was no evidence, which could satisfy this tribunal on the balance of probabilities that the decision of the respondent fell outside the range of reasonable responses that a reasonable employer could have adopted in the circumstances of this case. Accordingly the claimant's complaint is dismissed.

.

Chairman:

Date and place of hearing: 14-15 May 2007, Belfast.

Date decision recorded in register and issued to parties: