Kelly v Royal Mail Group Ltd

An absence-related dismissal may properly be characterised as dismissal for some other substantial reason where the employer has lost confidence in the employee’s future reliable attendance. The statutory label is secondary to the factual reason advanced.

In assessing fairness under Employment Rights Act 1996, the tribunal must apply the band of reasonable responses. Compliance with an agreed attendance policy is a strong, but not conclusive, indicator of fairness. An employer may consider an employee’s overall absence pattern, including blameless absences, when assessing future reliability. For disability discrimination, an employer must make its own factual assessment of disability, but may reasonably rely on informed and reasoned occupational-health advice after independent consideration.

The claimant, a postman, was dismissed after repeated absences triggered the final stage of the respondent’s agreed attendance policy. Two recent absences were for surgery for carpal tunnel syndrome. The dismissing manager reviewed the claimant’s wider attendance history and concluded that reliable future attendance could not be expected.

The Leeds Employment Tribunal dismissed claims for unfair dismissal and discrimination arising from disability. It held that dismissal, though harsh, fell within the band of reasonable responses. It also found that the respondent neither knew nor could reasonably have been expected to know that the claimant was disabled.

The claimant appealed, principally alleging perversity in the fairness finding and error concerning constructive knowledge of disability.

1. Appeal dismissed. The Employment Tribunal was entitled to find that unreliable and unsatisfactory attendance was a substantial reason capable of justifying dismissal under Employment Rights Act 1996.

2. The employer was not bound by the label used in its pleaded case. The material factual reason had consistently been unsatisfactory attendance. An absence-related dismissal need not invariably be classified as capability; loss of confidence in future reliable attendance may fall within some other substantial reason.

3. The Tribunal correctly applied the band of reasonable responses. At the final attendance-review stage, the agreed policy permitted consideration of the overall absence record. Policy compliance did not conclusively establish fairness, but was a proper and significant starting point. The claimant had notice that historic absences would be considered, and the employer was entitled to use the established pattern of absence to assess future attendance.

4. It was not perverse to regard the two surgery-related absences as distinct episodes. They were separated by months and each was extended beyond the anticipated surgical recovery period. The policy applied to absences irrespective of employee fault. The dismissal rested on the overall attendance record and operational need for reliable attendance, not solely on the surgery absences.

5. On disability knowledge, the Tribunal had correctly applied Gallop. An employer cannot merely adopt an occupational-health conclusion, but it may give substantial weight to reasoned medical advice after making its own assessment. Four reports, the favourable prognosis, the absence of evidence of substantial long-term effects, and the claimant’s and union representative’s position entitled the Tribunal to find no actual or constructive knowledge.

6. The objective-justification grounds were therefore otiose. In any event, the Tribunal’s conclusion that no viable alternative to dismissal remained, given the legitimate aim of reliable attendance, disclosed no error of law.

• Employment Appeal Tribunal: Appeal dismissed.
• Leeds Employment Tribunal: Claims for unfair dismissal and discrimination arising from disability were dismissed.