The claimant was employed by the respondent car manufacturer from 1999 until his dismissal in December 2018.  He had worked in various car assembly roles.   In terms of the background to the dismissal, there was little by way of dispute substantively.  The claimant had a significant amount of absences during his 19 years working for the respondent.  He had over 808 shifts that he had missed which was calculated as costing the company in £95,860 in sick pay.   Indeed, the Tribunal noted that the respondent had a very generous sick pay scheme for a private employer.

There were various reasons throughout the years for the absences but in most years the absences reached double figures.  Yet despite this, no action was taken against the claimant until 2018.   In 2018, the claimant developed problems with his left hip and he started to suffer chronic pain.  He was told that it could only be remedied by undergoing a hip replacement. As a result of the pain, he was absent from 12th March 2018 until 13th August 2018.  At this point there was a return to work interview coupled with advice given by occupational health.   The claimant outlined that he only returned to work under protest and that the occupational health was overruling his own doctor’s advice.  The next day a senior manager met with the claimant to communicate a warning that if the claimant did not enter into a settlement agreement regarding his return to work then his employment could possibly be terminated.

The claimant was put into a new role (registering VIN numbers) which allowed him to sit and use a walking aid if necessary.  The claimant acknowledged that this was a made up role only to allow him to get back to work.  This was quickly changed to that of a ‘Sealer’ which required him to walk around the car at the end of the production line.  The claimant questioned this considering that there was no seat provided and the walking involved was considerably increased.  After one day in the role, the claimant complained of pain and stated that he was having a GP appointment.  He was asked for evidence and he stated it was at 10am the next day but the company policy is that 4 hours leave is given for such appointments yet the claimant never showed for work at 6am.  Accordingly, there was an investigation into the claimant’s alleged failure to follow correct company procedure during an absence from work.

There were meetings organised relating to the claimant’s conduct and capability to do the job.  This went into the level of absence with the conclusion being that the business was in a bad financial situation relating to diesel cars, Brexit and other concerns.  As ‘every penny makes a difference’ and the fact that the claimant had cost the company around £100,000 over his career the decision was to terminate on the basis of conduct and capability.

The Tribunal in examining the decision stated that there was potentially a fair reason, that being capability, but when it came to how the decision to dismiss was reached there were serious problems.  This could be seen with the fact that the management in their general frustration focused on the claimant’s perceived attitude to work and overall absence record rather than why the investigation was actually started.  Indeed, there was a failure to follow the respondent’s attendance management procedure and it had been sped up to an employment review.  This was wholly unreasonable and unfair.   However, the Tribunal did find that the claimant would most likely have been dismissed within a matter of months from when the decision had actually been made considering the issue of capability.  For this reason, there would be a Polkey Reduction required.   Accordingly, it was found that there had been unfair dismissal and the case has been listed again for a remedy hearing.

Practical Lessons

This case demonstrates how management must remove any general frustration and ensure that proper processes are followed when disciplinary action is being taken.    The level of absences in this case was profound yet a finding of unfair dismissal was still found considering the failure to follow the attendance management procedure.   Whilst there will be a reduction in the level of compensation, this is scant reward for the company who have a finding against them and will have to pay some amount of compensation to a claimant who could have been fairly dismissed if the proper procedure had been followed.
https://www.gov.uk/employment-tribunal-decisions/mr-v-rumbold-v-jaguar-land-rover-1301922-slash-2019