The recently reported case of Kelly v Royal Mail Group Ltd was asked to decide on that very question.
The claimant worked as a postman. He had a poor attendance record generally and had triggered Royal Mail’s attendance policy on several occasions due to repeated episodes of planned and unplanned absence.
Two further periods of absence relating to planned surgery were the final straw for his employer. This triggered the employer’s right to review the whole of the employee’s attendance record. The employer concluded that it had lost confidence in the employee’s ability to maintain a satisfactory attendance record and dismissed him. The Employment Tribunal held that although the decision to dismiss was harsh, it fell within the band of reasonable responses and the dismissal was fair. An allegation that the dismissal amounted to discrimination arising from disability was also dismissed on the basis that the employer did not know and could not reasonably be expected to know that the claimant had a disability. The Employment Appeal Tribunal dismissed the employee’s appeal.
The basis of the appeal was that it was perverse to conclude that it was fair to dismiss the employee for two periods of absence relating to corrective surgery for which the employee was essentially blameless. The Employment Appeal Tribunal found that the Employment Tribunal’s conclusion as to the fairness of the dismissal could not be said to be perverse. The employer’s policy expressly permitted earlier absences to be taken into account. Conduct that is in line with policy is unlikely to be unfair. The policy applied to all absences, irrespective of fault or blame, and the employer was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future.
We suggest that Employers should review their absence policies to ensure that a right to review an entire attendance record is triggered at a defined point.
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