United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 612_93_0703

Appeal No. EAT/612/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R CHAPMAN

MR P DAWSON OBE

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MR R S PURSLOW          APPELLANT

MOYA DENTAL LABORATORY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R S PURSLOW

(In Person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London (South) on the 27th May 1993. The complaint was brought by Mr Richard Stephen Purslow against his former employers, Moya Dental Laboratory. The claim was for unfair dismissal. For the reasons notified to the parties on the 30th June 1993 the Tribunal unanimously decided that Mr Purslow was not unfairly dismissed.

Mr Purslow was dissatisfied with that decision. He appealed on the 6th August 1993. He appealed on the ground that the Tribunal:

"had reached a decision which an Industrial Tribunal properly directing itself could not have reached and/or reached a decision which was contrary to or not supported by the evidence before it."

He attached to the Notice of Appeal lengthy submissions directed to the detail of the case and, in particular, he set out his contentions on the decision of the Tribunal.

Mr Purslow's case was really summed up in the last two lines of his submissions:

"In summary. I believe that natural justice demands the findings of the Industrial Tribunal are re-examined."

In order to see how far this Appeal Tribunal can re-examine the findings of the Industrial Tribunal we must first look at the complaint against the factual background and then look at the way that the Tribunal decided the case.

The facts are that Mr Purslow was a technician employed in the firm of Moya Dental Laboratory from February 1984 to the 27th March 1992. In his complaint of unfair dismissal, presented to the Tribunal on 12th May 1992, Mr Purslow said:

"His dismissal was the culmination of a protracted attempt [by Mr Moya] to terminate my employment."

He contended that he had been adequately performing his job since 1984. He disputed the reasons given for his dismissal. They were related to the quality of his work, his tidiness in his job and his speed and performance abilities.

On the Respondents' side the reason for dismissal was:

"Lack of capability as defined in Section 57 of the Employment Protection (Consolidation) Act 1978."

It was submitted that Mr Purslow was dismissed, wholly fairly, because he failed to meet the appropriate quality of work and production targets and to acquire new skills to broaden his range of work.

It was disputed that he had been carrying out his job adequately since 1984. Reference was made to a number of verbal and written warnings. Mr Purslow's claim that his dismissal was the result of a protracted campaign to terminate his employment was disputed.

Those were the issues between Mr Purslow and Mr Moya which the Industrial Tribunal had to decide at the hearing last May.

The Tribunal found the facts as follows. Mr Moya was in business as a Dental Mechanic, in a small way, in the Croydon area. Mr Purslow, who had no previous experience of this type of work, began his employment in February 1984. At the time when the employment started Mr Moya was mainly engaged in manufacturing crowns and bridges, but he later developed more sophisticated dental appliances, in particular, the manufacture of specialised ceramic teeth. Most of the work was for the National Health Service with a small percentage of private work.

Mr Purslow's main function was to carry out processes in relation to the teeth, including coating teeth and firing them, on occasions, in a small furnace. This job required some skill. The cost of labour and materials involved were such that rejects were expensive to Mr Moya.

The change in charges for dental services in the National Health Service caused Mr Moya to reconsider the organisation of his business and possible redundancies. There was an opportunity of engaging a qualified Dental Mechanic. There was a small staff that seldom exceeded nine. Trainees were employed from time to time. They would go away on training at the Technical College.

Mr Moya originally prepared a note giving Mr Purslow notice of redundancy, but that was never handed to him. The way in which the matter developed was that Mr Moya gave warnings to Mr Purslow about the quality of his work.

We have been handed a bundle of documents that were before the Tribunal. They included a warning letter signed by Mr Moya and addressed to Mr Purslow. It is dated 1st November 1991. The letter contains comments on Mr Purslow's performance. Reference is made, in particular, to:

"quality of work

tidiness

speed/performance"

and to his daily shortcomings in these areas being visible. There was a complaint of lack of results. This was a major key to slow development towards higher quality in the full team which was needed in the more competitive conditions. The letter finished:

"Unless drastic steps in the three fields mentioned above are taken immediately I will take my responsibilities.

A review of progress will be made in a month's time."

Mr Purslow was dismissed on the 27th March 1992 for the reasons stated in that letter.

The Tribunal stated in their decision that they had heard evidence at some length from both Mr Purslow and Mr Moya. The Tribunal observed that the dismissal was performance related, in a small business with limited resources. They referred to Mr Moya's evidence, which was supported by diagrams, models and schedules and to the fact that the evidence of both men was tested by cross-examination and by some searching questions from the Tribunal.

The conclusion of the Tribunal was that they found Mr Moya to be a credible witness. They accepted that he tried to encourage Mr Purslow to improve himself by attending Technical College and understand the reasons why, in view of Mr Purslow's poor performance, he was not prepared to assist him financially or allow him paid leave for that purpose. The Tribunal concluded:

". . . that in a competitive world where the basic materials and processes involved are expensive there is little room for errors and a need to ensure production is carried out as speedily as possible. It would seem to us that the Applicant was singularly unable to meet the criteria demanded of him and was unable to explain how others, such as trainees, could achieve the target when their expertise was most limited in comparison to his own long service and experience with the Respondent."

The Tribunal held that, on the evidence, Mr Purslow was not "pulling his weight" and that the dismissal was fair.

Mr Purslow has made a number of detailed criticisms of the Industrial Tribunal's decision. It is important just to state briefly the legal position. Under Section 57 of the Act:

"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."

One of the reasons falling within Section 57(2)(a) is a reason which:

"related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,"

The Courts have decided that in cases where this ground is relied upon it is not for the Tribunal to substitute its views about the employee's competence for that of the employer. It is impermissible for a Tribunal to do that since frequently the Tribunal will not be in a position to assess work performance or decide whether it falls below the standard commonly

expected of employees in a particular job. The test as laid down by Lord Denning in Alidair Ltd v. Taylor [1978] ICR 451G, is:

"Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent."

The test is one of genuine belief based on reasonable grounds.

The decision of the Tribunal is clear. They accepted the evidence of Mr Moya as credible evidence in relation to the reason given for dismissal.

Is there an error of law in this decision which entitles Mr Purslow to appeal, and if he succeeds, have it allowed and the matter remitted to another tribunal? In our judgment, there is no error of law.

We have tried, in discussions with Mr Purslow, to discern what his complaints are. They come down to a relatively small number of points. First, that the real reason for his dismissal was that there was a campaign against him over a number of years by Mr Moya. That was not accepted by the Tribunal as the reason for the dismissal. That cannot be re-opened in this Appeal Tribunal. The Industrial Tribunal took that view of the evidence. It is a finding which this Tribunal is not at liberty to disturb.

Secondly, there was a more technical complaint. There were diary entries and notes which Mr Purslow wished to rely upon as evidence in support of his allegation of a campaign against him. His complaint is that the Industrial Tribunal wrongly refused to allow to produce these documents in evidence. He has given us examples in document "K" of a bundle which was before the Tribunal. The examples of the diary entries which he has transcribed there show that, on various occasions, Mr Purslow wrote down comments made on various days by Mr Moya; comments, sometimes rude, about his work, about the time he took to do it and other matters of a more personal and abusive character.

Having been shown the diary entries, we are satisfied that they do not help on the principal issue in the case, namely Mr Purslow's competence to do the job. We do not find any error of law by the Tribunal in not referring in their decision to the diaries and notes and in not allowing Mr Purslow to bring them forward in evidence.

A third point, a more valid comment by Mr Purslow on the whole case, is that, if he was not up to the job, isn't it surprising that he held the job for as long as he did? That is from 1984 to March 1992. The point made by Mr Purslow is that the very length of his service casts doubt on the reason for Mr Moya's dismissal of him.

We see the force of that point, but it is a matter of fact for the Tribunal. The Tribunal were well aware, as appears from their decision, that Mr Purslow commenced his employment in February 1984. What the Tribunal concentrated on were the events immediately leading up to Mr Purslow's dismissal. The events leading up to it included a letter of warning about his work performance. It included evidence, which the Tribunal accepted from Mr Moya, about his dissatisfaction with the quality of Mr Purslow's work.

As the Tribunal decided that Mr Moya was a credible witness it is clear that they did accept that he genuinely believed, on reasonable grounds, that Mr Purslow's work performance did not attain the standard of competence which Mr Moya was entitled to expect. In those circumstances the Tribunal were entitled to dismiss the claim made by Mr Purslow without enquiring further into the details whether Mr Purslow was, in fact, competent or incompetent, as alleged by Mr Moya. The test is genuine belief on reasonable grounds on the part of the employer. The Tribunal, quite correctly, declined to carry out the exercise of a full investigation into whether Mr Purslow was, in fact, competent. That is not a function which a Tribunal can perform.

For those reasons there is not an error of law. We quite understand that Mr Purslow feels aggrieved. He was dismissed from a job which he held for six years. He may continue to harbour, after this decision, a belief that he was dismissed unfairly. We cannot do anything about that. Our jurisdiction is limited to hearing appeals on errors of law. We are unable to find one in this decision. In those circumstances the appeal will be dismissed at this preliminary stage. There is no point in the appeal being pursued to a full hearing, if there is no error of law which can be usefully argued at a full hearing.

The appeal is, therefore, dismissed.