United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 985_93_0902

Appeal No. EAT/985/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MR R JACKSON

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EAST GRINSTEAD PLANT & TOOL HIRE CENTRE LTD          APPELLANTS

MR A A LORING          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR R K S SLATTER

(Managing Director)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at Brighton on the 4th August 1993. The Tribunal heard an application by Mr A A Loring for unfair dismissal against his former employers, East Grinstead Plant & Tool Hire Centre Limited. At the hearing the employer was represented by the Managing Director, Mr Slatter. He also appeared "in person" on this appeal.

On the appeal Mr Slatter complains of the decision that the dismissal was unfair. Because he was dissatisfied with the decision he gave a Notice of Appeal on the 18th October 1993 that the decision of the Tribunal was perverse and that no reasonable tribunal would have come to the decision that the dismissal was unfair. He specifically complains of a part of the decision which states in paragraph 3(j):

"Mr Slatter accepts that at no time did he give any formal or informal warning to the Applicant that he would be dismissed if his performance did not improve."

It is stated in the Notice of Appeal that that was not the evidence given to the Industrial Tribunal by Mr Slatter. It is also pointed out that a request for the production of the Chairman's Notes of Evidence was refused.

The background to the appeal is that Mr Loring was employed as a Manager by the Company, which carried on business of a small plant and tool hire workshop. He was engaged from about February 1981 until 1989 on what was technically regarded by the Industrial Tribunal as a self-employed basis. From 1989 he was employed down to 1993, when Mr Loring was dismissed on the 28th January.

Mr Loring presented a complaint that he had been unfairly dismissed, simply stating that there was:

"No Notice of dismissal. Told I had to leave immediately without Notice.

I asked for Reason for Dismissal. Told `we have to cut overheads'."

The Company disputed the claim in the Notice of Appearance dated 10th March 1993. It was stated that the reason for dismissal was that Mr Loring was:

"not capable of carrying out his duties."

That was the issue to be resolved by the Industrial Tribunal. The Tribunal, found as a fact, that Mr Loring had been continuously employed by the Company from the 16th February 1981 down to the date of dismissal.

On the crucial questions the Industrial Tribunal decided that the reason for dismissal, was lack of capability. That is made clear in paragraph 4 of the decision. The Industrial Tribunal went on to state that dismissal on that ground, in order to be fair, must be preceded by sufficient warnings to enable the employee to improve his performance. The Tribunal found as a fact that no such warnings were given to Mr Loring, either expressly, or by implication. The dismissal was therefore unfair.

In an earlier part of the decision, paragraph 3(j), the Tribunal states:

"Mr Slatter accepts that at no time did he give any formal or informal warnings to the Applicant [Mr Loring] that he would be dismissed if his performance did not improve. Mr Slatter felt that it must have been obvious to the Applicant [Mr Loring] that dismissal was a likely outcome if the turnover of the business did not improve"

The Tribunal dealt with other parts of the evidence, relating to the circumstances of the dismissal. They found in paragraph 3(m):

"The Applicant [Mr Loring] subsequently met Mr Slatter and although the precise conversation is not very clear to the Tribunal, it is probable that the Applicant [Mr Loring] was told again that the reason for his dismissal was redundancy and in answer to a question as to whether or not he had done anything wrong, he was told by Mr Slatter that he had not."

On taking the Industrial Tribunal's Reasons as a whole, rather than picking particular sentences out of context, it is clear that the Tribunal decided that the Company was entitled to dismiss Mr Loring, on the grounds of his lack of capability in his position, but came also to the conclusion that there was a procedural unfairness in the dismissal because Mr Loring had not been given sufficient warnings that he would be dismissed if his performance did not improve. He was not given the opportunity to improve his performance under the threat of dismissal.

Mr Slatter, in his submissions, made his point very clear. He had not given evidence in which he accepted that he gave no formal or informal warnings. We asked some questions of Mr Slatter, in order to make sure that there had not, in this case, been a serious slip on the part of the Tribunal about the evidence. Mr Slatter accepted, in answer to our questions, that he had not given any formal warnings. What he had done, he said, over two or three years was to mention informally to Mr Loring criticisms about his performance. Mr Slatter said that he would really need the Chairman's Notes. That was the advice he had received from Counsel on an appeal attacking the Tribunal's decision on this point. We have considered this point. We have come to the conclusion that there really is not a point of law raised on this appeal. It would not become a point of law by ordering production of the Chairman's Notes. Reading the decision of the Industrial Tribunal as a whole, they found as fact that there were no sufficient warnings given to Mr Loring to the effect that he would be dismissed if he did not improve his performance. We do not think that this is a case where Chairman's Notes are likely to throw any light on the matter. There is no point of law. What Mr Slatter is seeking to dispute is the Tribunal's finding of fact.

In those circumstances there is nothing arguable at a full hearing of this appeal. We will dismiss the appeal.