Author: Joe

Appeal No. EAT/126/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4th December 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A D SCOTT

	MR G H WRIGHT MBE

J A C STURTON	APPELLANT

LORD CHANCELLOR'S DEPARTMENT	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS V J COOPER
	(Solicitor)
J S Winny & Co
Corvedale Road
Craven Arms
Shropshire
SY7 9ND

	

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by way of a Preliminary Hearing from a decision of an Industrial Tribunal sitting at Shrewsbury, under the Chairmanship of Mr Leo Blair, who heard a complaint by Mr Sturton that he had been unfairly dismissed by the Lord Chancellor's Department.  The hearing took place over some 4 days.  Mrs Cooper, a Solicitor, appeared for him, the Lord Chancellor's Department appeared through the Treasury Solicitor and Counsel.

	Mr Sturton had worked for many years without any complaint about his work.  There had been two minor incidents, but they are of no particular note and there was an unwise decision when he, with his mother who was not well, took a caravan on the farm of a court debtor, but he realised at once that that was wrong and that was put behind him.

	The problems started in earnest with the appraisal of Mr Sturton for the period 1st March 1988 until the 1st March 1989.  He was given a staff appraisal and in that appraisal he was given a Box 4 assessment.  The use of the Box marking shows the level of overall ability and runs from 1, which is outstanding, to 5 which is unacceptable.  So Box 4 and 5 are below the average, Box 3 is the middle.  After this matter had been examined by a countersigning officer his Box 4 assessment, on that occasion, was changed to Box 3.  That was done because it was felt that part of his problems at that time was through lack of supervision and training.  However, the next appraisal was for the period from 1st March 1989 until 31st January 1990, and there he received a Box 5 marking, which was the lowest.  These appraisal forms are quite complicated, stretching over more than one page.  The work is described, percentage of work on various types of duties.  Then on page 2 there is a performance assessment, with a certain number of Boxes under various headings:  work activity;  management;  communication;  working relationships;  knowledge/skills, and one can see, because the boxes are filled in with the various numbers, how one is assessed under each of those headings and sub-headings.  So that it is not just the overall performance rating but one can see the whole thing with comments written in by the officer making the appraisal, which is, presumably, the one in line management.

	So after that rather disastrous Box marking in the early part of 1990, he was interviewed by a personnel officer from the Stafford Group of County Courts.  It is unnecessary for us to explain the structure of the Lord Chancellor's Departments through the management of courts, but there are the various areas which build up in a pyramid until you get a Circuit Administrator on each circuit and thereafter through to the Lord Chancellor's Department at the centre.  Miss Orchard therefore was put in charge of this matter.  She had an interview and she took the view that a trial period would be sensible.  It was agreed that Mr Sturton should move and that there should be a six months trial period beginning on the 2nd April 1990.  He changed his Court.  Miss Orchard, at the interview, had told him he must attain, at least, a Box 3 marking and that was necessary.  If he failed to do so, he was told dismissal would be commenced on the grounds of inefficiency.  That was an erroneous record of what she said;  she gave evidence that what she meant was, "consideration will be given to dismissal proceedings to be commenced if you fail to reach Box 3."  The Tribunal accepted that that was intended and found that to be acceptable evidence from Miss Orchard.  That interview, we have said, took place in the March of 1990.

	Two further appraisal reports were made on Mr Sturton.  The first, which is the third in all, was for the period of 2nd April 1990 until 14th June 1990.  There was a new supervisor and a new reporting officer, presumably because of the comment made earlier that training had been criticised.  Each of those new officers came to the conclusion that they had to report that his progress was still unsatisfactory, they gave him Box 4.  There followed, therefore, another meeting with Miss Orchard, the second, and he was asked whether there was anything specific that could be done to help.  Despite the fact that he had worked so well over all the years, Mr Sturton had reached an age, and in 1990 he was 58, where his concentration was going.  He was reminded yet again, of his obligation to maintain a standard as required, Box 3.  

	The fourth appraisal was in connection with the period 4th August 1990, to the 19th October 1990.  On this occasion it was the same as the previous one, in essence, and he was graded Box 4.  The point is taken that in paragraph 4 of the decision the Tribunal say that it was Box 5, it was not, it was Box 4, that is clearly an error of fact on the part of the Tribunal, but the important thing is that Miss Orchard had before her all the documentation, all the appraisals and she, Miss Orchard could not have been mistaken as to the Box assessment.  

	Yet a further interview took place on the 21st November 1990.  Again, he was accompanied by his trade union representative, as he had been on other occasions.  Matters were discussed, Miss Orchard looked into it all and we have here, which Mrs Cooper has kindly provided for us, the notes made by Miss Orchard of that last interview.  They are copious notes which show that the whole problem was examined at length.  Obviously, Miss Orchard was going to have to consult up the line, and she did so.  She telephoned Miss Artingdale at Midland and Oxford Circuit office, who knew the case well.  She discussed it with the Court Administrator, that is further up again and the decision ultimately, was taken that there would have to be dismissal on the basis of capability, namely inefficiency.  It was decided that Mr Sturton should be treated as a case of early retirement on the grounds of inefficiency and we feel there is an entirely appropriate view to take of the matter.

	Mrs Cooper has taken a number of points, the first one we have dealt with, there was an error of facts as to Box 5, it has not been corrected but it would not have affected the mind of Mrs Orchard in reaching a decision.

	The second point is that Mrs Cooper argued that the period of six month trial was insufficient in the circumstances after all these years of service.  That was looked at by the Tribunal and they rejected it, it is a question of fact, and we see no error in law in the direction they gave themselves about that.

	Then she takes a point on certain ushering duties, it seems to us that the dismissal on the grounds of inefficiency did not have to divide up each different hour of work, or day of work, and this was clearly a sufficient dismissal for that purpose.

	Lastly, she submits that because in that early assessment, for the period 1st March 1988 until 1st March 1989, there had been criticism of the training and supervision in the area in which Mr Sturton was working at that time;  it was therefore unjust to reach the conclusion after only six months I think it is back really on the six month point, to dismiss him.

	We have looked at this matter carefully, it was an issue of fact, the procedure was followed throughout, every opportunity was given and it is a sad fact as it appears from the papers that Mr Sturton's health was deteriorating in minor ways to the extent that he had become inefficient.  That was not his fault, it was just a fact, and the Lord Chancellor's Department were therefore faced with a decision which is unpalatable for anybody but they had to make it and they reached it, and the Tribunal thought that they reached it fairly, we also think they reached it fairly.

© Copyright 1992

EAT/126/92

EAT/126/92

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