Christopher Gould (the Employee) v Jersey Post Limited (the Employer)
In this case, the Employee made a claim against the Employer for Unfair Dismissal. The Employer claimed that the Employee was dismissed because of his poor attendance record. The Employer accepted that the reason for such poor attendance was the Employee’s ill-health. The Employer believed the Employee could not undertake his role as a postman due to his poor attendance.
There was no suggestion that the Employer had caused the Employee’s ill health, but rather that the Employer had failed to assist the Employee manage his illness. Through witness evidence, it transpired that the Employer had made genuine efforts to assist the Employee and to help him manage his difficulties. Based on the evidence presented it became clear that the real issue was poor communication between the Employer and Employee. The Tribunal found that this was in large part due to the Employee failing to engage properly with his Employer.
The Employer had in place a policy for dealing with attendance issues. The policy provided that employees who had reached a certain level of non-attendance “will be referred to an Occupational Health Adviser”. The Employer did not make a referral to occupational health and escalated to the next stage of the procedure which involved discussions about the termination of employment.
The Employer argued that even had it’s followed/applied it procedures (the referral to occupational health) it would have made no difference to the ultimate outcome and the Employee would still have been dismissed. The Tribunal was unable to accept that the engagement of an occupational health adviser would not have changed anything / led to a different result. The Tribunal’s assessment was that the referral to occupational health could have facilitated conversations between the parties. Also, the referral to occupational health provided opportunities for reasonable adjustments to be made on the advice received from occupational health. As the referral was never made there was no opportunity for reasonable adjustments to be fully considered. The mandatory referral was contained in the policy to try to facilitate a solution. The involvement of the independent third party could have resolved the communication issue and allowed a solution which suited both parties to be found.
The Tribunal, therefore, found that the Employee had been dismissed unfairly. The Tribunal found that the Employer failed to demonstrate that it had acted reasonably in treating the Employee’s conduct as sufficient reason for dismissing him.
The Tribunal awarded the Employee compensation in the amount of £6,036.81.
Take-away points
1. If an issue arises between an employee and the employer, always refer to and apply your policies and procedures.
2. An employee’s conduct will be factored into the Tribunal’s assessment and if found to have contributed to the dismissal, the Tribunal will reduce the award. The Tribunal reduced the Employee’s award in this case by 25%. The Employee had failed to engage in the process and did not communicate with his Employer when it was trying to manage his attendance.