United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1272_95_2404

Appeal No. EAT/1272/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th April 1996

HIS HONOUR JUDGE P CLARK

MR A E R MANNERS

MRS P TURNER

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MR D WORROLLO          APPELLANT

SECRETARY OF STATE FOR DEFENCE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR B NAPIER

(of Counsel)


 


JUDGE CLARK: This is the second time that this matter has come before the Employment Appeal Tribunal.

Mr Worrollo was employed by the respondent as an Executive Officer from 10th December 1972 until his dismissal for alleged incompetence in 1991. The precise effective date of termination is not material.

Following that dismissal he presented an originating application to the Industrial Tribunal on 19th September 1991, complaining of unfair dismissal. That complaint was heard over a number of days during 1992, culminating in a decision by the London (South) Industrial Tribunal (Chairman: Mr Giles Flint) that his dismissal was unfair, and that he had contributed to his dismissal to the extent of 25%.

That decision was successfully appealed to this tribunal by the respondent, and the case was remitted for rehearing by a differently constituted Industrial Tribunal. That second tribunal, chaired by Mr D N Booth sat on 9th October 1995 and dismissed the complaint. Extended reasons for that decision, against which Mr Worrollo now appeals, are dated 18th October 1995.

This is a preliminary hearing held to determine whether or not the appeal discloses an arguable point of law to go before a full hearing of this tribunal. Mr Worrollo has had the advantage of the services of highly experienced Counsel in this field, Mr Brian Napier, under the ELAAS pro bono scheme, who advances two potential points of law which we have carefully considered.

The first is that the Industrial Tribunal failed to give adequate reasons for their conclusion that this dismissal was not procedurally unfair. In particular, although the Industrial Tribunal refer to two procedural weaknesses identified by the respondents themselves, they deal with only one, relating to warnings given to the appellant, and do not articulate the other which we are told related to the completion of his job description by a manager and not by the employee himself as the respondent's rules required.

In considering this submission we bear in mind the balance to be drawn between the requirement that tribunal's provide sufficient reasoning to explain to the parties why they have won or lost and the well-known dictum that tribunals are not required to set out each and every point which is raised in the case in their written reasons.

Having looked at that part of the Industrial Tribunal's reasons headed "Submissions" we are satisfied that this Industrial Tribunal did consider all the procedural weaknesses advanced in argument by Mr Worrollo and then concluded that they were not, collectively or individually, of sufficient significance to cause in their judgment the dismissal to be characterised as unfair. In our judgment that is a view which they were entitled to reach; they did consider the matter sufficiently and sufficient reasons for their conclusion appear on the face of the decision.

The second point is that the Industrial Tribunal does not appear to have considered whether a reasonable employer would have looked for alternative employment as an alternative to dismissal. We think that there are two difficulties with this submission. First, the point was not raised below, and in our view ought not to be permitted now. See Kumchyk v Derby City Council [1978] ICR 1116. Secondly, and substantively, we note from the decision that the appellant was in fact moved to an alternative position in the Directorate of Accountancy Estimating pricing services, but that move was not a success according to a report on his time there by Mr Turnbull dated 13th November 1990, which the Industrial Tribunal accepted was a fair report.

We are satisfied that Mr Napier has advanced the best argument available to Mr Worrollo, having ourselves considered the other matters raised in the Notice of Appeal, but have concluded that no arguable point of law is made out in this appeal and accordingly it must be dismissed.