Employer disregarded claimant’s health, possible alternative roles and long service, tribunal finds
An employee with 23 years’ “loyal” service who was sacked a month after telling his employer that he suffered from a sleep breathing disorder was unfairly dismissed, a tribunal has ruled.
The Manchester Employment Tribunal heard that Jim Madeley worked as a warehouse associate at Leicester-based Novia Logistic Services for more than two decades until he was dismissed for misconduct in September 2016, after an updated automated quality-control system picked up inaccuracies in his work.
Madeley’s role involved carrying out a wide range of duties, from driving to picking and packing, and had performed many duties in his years of service for the company, whose business was to distribute and market automobile parts and accessories.
In May 2016, however, the claimant’s driving licence was revoked after he was thought to be suffering from sleep apnoea. He was moved to a different area of work, where he could pick on foot. Novia gave him a final written warning one month later, in June 2016.
Madeley had received a first verbal warning in December 2015, followed by a written warning in April 2016, after Novia introduced the updated points-based error management system to the workplace to reduce staff-based errors, which was a “notably stricter policy” than that previously in place.
Novia said that the area Madeley worked in for the latter part of his employment was the part of the business where the most errors occurred.
In August 2016, Madeley informed his employer that he had sleep disordered breathing, which also caused him stress at work. He was dismissed in September 2016.
The decision to dismiss followed an investigation and disciplinary hearing by plant manager and disciplining officer Mr Clague. He discounted Madeley’s medical condition as he considered that Madeley had a persistently high error rate before his medical condition.
His manager also concluded that, as the claimant had a consistently high error rate, his health issues were not the reason for the high level of errors. Although Clague considered whether there was another role in the business Madeley could transfer to, he decided that an occupational health report ruled out a packing role and that Madeley had been shortlisted but had withdrawn from an internal recruitment exercise for a customer service administrator role. In his oral evidence, however, Clague stated that he dismissed Madeley because of his continued error rate and that he did not believe that anything other than dismissal would have been appropriate.
The tribunal accepted that the claimant was dismissed for his conduct, noting that where poor performance is down to carelessness, negligence or idleness, rather than necessarily a lack of skill or aptitude, the principal reason for dismissal is conduct. However, it found that Madeley had been unfairly dismissed.
Judge Rice-Birchall found that Clague “genuinely believed [Madeley] had committed the errors complained of, and dismissed [him] for that reason”. However, Novia failed to take Madeley’s length of service into account. It also found that Novia incorrectly used his length of service as a factor in dismissing him, despite his medical condition, claiming that he should not be making errors.
Clague said: “I considered the fact that he had a pacemaker fitted and sleep apnoea issues but did not accept that either medical condition was a deciding factor.” The tribunal found, nonetheless, no evidence that there was any discussion with the claimant about his condition or conditions, and any impact it might have had, on which Clague could have based his decision.
Novia failed to address or properly consider Madeley’s representations about the fact that he spent seven hours a day picking, and was working in the area with the highest level of errors. In essence, that meant that the claimant’s error rate was proportionately lower than many other colleagues who picked, the tribunal found.
Above all, the tribunal did not accept that Novia considered whether there were alternatives to dismissal for Madeley. “There was no consideration of whether the claimant should be offered alternative employment. A reasonable employer, given an employee with 23 years’ service, would at least have considered with an open mind whether there was some alternative work that could be done.”
Rice-Burchall also found the organisation had shortcomings at the investigation stage, as there was no cross-referencing or verification against the records, and insufficient consideration of Madeley’s health.
Charles Pigott, professional support lawyer at Mills & Reeve, told People Management that employers had to engage with alternatives to dismissal. “Although there was no dispute about Madeley making an unacceptable number of errors, his dismissal was unfair because neither was there any consideration to the possibility of alternative employment. The employer failed to appreciate there was more to fairness than simply applying the error management system.
“Linked to this error was a failure to engage at all with Madeley’s health condition, which had some bearing on the alternative jobs he might have been able to perform.”
Ranjit Dhindsa, head of employment at Fieldfisher, warned: “Many employers think they can ‘top up’ a final written warning to dismissal without carrying out a high standard of investigation beforehand. Length of service should also be factored in, even if the employee is on a final written warning – the longer the service, the more positive a factor it should be for them.”
Employers should also have an open mind when dealing with similar situations. Philip McCabe, principal solicitor at McCabe and Co Employment Solicitors, said: “If there is one lesson for employers to learn from this case, it is to have an open mind. Not only to consider any mitigating circumstances but also when deciding what (if any) disciplinary sanction to impose. The managers at the disciplinary and appeal hearings were both criticised for failing to have an open mind and for not engaging with the claimant’s representations.”
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