South Yorkshire Fire & Rescue Authority v Beever & Ors

A contractual attendance criterion framed as a commitment to achieving high levels of attendance is not necessarily satisfied or defeated solely by whether an employee meets a numerical absence target. The target may be a starting point, but the employer must assess the employee’s commitment and consider whether illness, injury or other reasonable circumstances explain the absence. Serious incapacity does not, without more, demonstrate a lack of commitment. A contractual scheme may require assessment by management, while permitting intervention where the assessment was not conscientiously made.

Firefighters and a control room assistant claimed unpaid annual payments under a Continual Professional Development Scheme incorporated into their contracts through collective agreements. The South Yorkshire Fire and Rescue Authority refused payment because their absences exceeded a locally specified target, subject to specified disregarded absences.

An Employment Tribunal upheld the claims as unlawful deductions from wages under Part II of the Employment Rights Act 1996. The Authority appealed. Mrs Beever also pursued an alternative disability discrimination claim, and the Claimants appealed a Registrar’s costs order. The central issue was whether exceeding the attendance target was determinative of entitlement under the Scheme.

1. Main appeal dismissed. The Scheme and Guidance Notes were contractual. The attendance criterion was not too uncertain for incorporation into contracts of employment. It required an exercise of judgment concerning an employee’s commitment to achieving high levels of attendance.
2. The Authority’s numerical absence target was a legitimate starting point, but it was not an absolute test subject only to formally disregarded absences. The assessment had to consider the employee’s attitude to attendance, reasonable circumstances affecting attendance and the employee’s usual attendance record.
3. An employee who was unable to attend because of serious illness or injury could not, merely for that reason, be characterised as lacking commitment. Disregarded absences under the Authority’s procedures were not the only absences capable of explaining an attendance record without impugning commitment.
4. The managers’ assessments in the four cases were sufficient. In particular, Mr Buckley’s manager had undertaken the assessment contemplated by the Guidance Notes, Mr Martin’s incapacitating injury spoke for itself, and Mr Tonge’s injury and prompt return to modified duties supported entitlement. The Tribunal was also entitled to treat the recommendation in Mrs Beever’s case as evidence that an assessment had been made.
5. The FAQ was inadmissible as an aid to construction and was not relied upon. It was unnecessary to decide whether entitlement could arise despite failure to satisfy every criterion under every national standard. The better view was that the Scheme required demonstration against each criterion.
6. The Scheme did not make managers’ opinions absolutely binding. The Authority could intervene where an assessment had not been conscientiously made, although assessment would ordinarily be undertaken by line management rather than human resources.
7. Mrs Beever’s alternative claim under the Disability Discrimination Act 1995 was academic in light of the contractual award. If it became relevant, the issue would require remission to the Tribunal.
8. Costs appeal allowed. The Registrar’s order requiring the Claimants to pay £350 plus VAT was set aside. The opposition to a short extension of time had been needlessly aggressive and had caused the subsequent application.

• Employment Tribunal, Sheffield: upheld the Claimants’ unlawful deduction from wages claims and ordered payment under the Scheme. The Authority appealed to the Employment Appeal Tribunal.
• Employment Appeal Tribunal: dismissed the Authority’s main appeal, recorded that any unresolved disability discrimination issue would require remission if relevant, and allowed the appeal against the Registrar’s costs order.