This was a claim for unfair dismissal after the claimant had been dismissed for a number of absences from work under the respondent’s Absence Policy. There was a dispute regarding the ‘trigger point’ when a final warning could be issued. In March 2009 numerous changes were made to the policy which were communicated to all staff and included in the Employee Handbook.

The tribunal dealt with the issue of whether it was fair to introduce an Absence Policy which retrospectively allowed expired warnings dating back six years to be considered. The tribunal stated its reservations about the rule that 'spent' warnings could be dated back so long, but highlighted the authority of Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135 which it felt bound to follow. Based on that decision, the 'objective' of the Absence Policy was noted in that it aimed to tackle a chronic absentee problem in the company. The tribunal also set a high benchmark in stating that it would only intervene in such an internal policy if it was shown to be "manifestly unjust or unfair".

Practical lessons

The tribunal here was deferential to, and followed, the dicta of Lord Justice Mummery in Davies. Essentially there was no evidence that the final warning was given in bad faith and the policy was indeed introduced to deal with a genuine issue of absenteeism. This decision certainly gives employers discretion in how they make changes to absentee policies and the fact that it was not unilaterally imposed and was actually discussed with Unions was an important factor. The very recent case of Way v Spectrum Property Care Ltd [2015] EWCA Civ 381 is also worthwhile further reading and confirms the Davies authority.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/381.html