United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1283_95_2205

Appeal No. EAT/1283/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 May 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR J R CROSBY

MR P DAWSON OBE

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MR H JAGPAL          APPELLANT

LONDON BOROUGH OF ENFIELD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R HOLMES

ELAAS


 


MR JUSTICE BUTTERFIELD: This is an appeal against the decision of the Industrial Tribunal sitting at London (North), promulgated to the parties on 16 October 1995 whereby the Tribunal held that the Appellant had been fairly dismissed. The case comes before us by way of Preliminary Hearing in order to decide whether the Notice of Appeal, in its original or amended form, raises a question of law which is reasonably arguable. This Tribunal only has jurisdiction to hear appeals from an Industrial Tribunal on a question of law. If the appeal does not raise a point of law that is reasonably arguable, no purpose is served by allowing it to go on to a full hearing, at which both parties would be represented.

The Appellant was employed as an Internal Auditor by the Respondents from 1987 until his dismissal on 6 January 1995 for lack of competence. In summary, the Appellant began to experience difficulty in working within the time controls allotted to specific audits during 1992 and 1993. In May 1993 the Respondents had serious concern about the Appellant's work on an audit of the Highways DLO. The Appellant himself recognised that his performance had been poor, accepting that he could not finish the audit, and attributing that failure to stress, caused by not being able to perform audits in the time given. The Appellant was informed that in consequence his work would be closely monitored for six months. He was further told that if during the monitoring period his performance did not achieve satisfactory levels, further action would be taken. The Appellant's performance did not improve. The Appellant continued to fail to meet the agreed timescale for completion of audits.

In November 1993 he was told that the Respondents would commence formal disciplinary action at the end of the six month period if there was no improvement. Whilst there was no improvement, in the event disciplinary action was not taken at that time. The Appellant's performance continued to be monitored with ever increasing concern about his abilities being expressed by management and the possibility of disciplinary proceedings still very much in mind. It became apparent that the Appellant might be suffering from stress-related sickness. He was referred to the Respondent's doctor who advised the Respondents that the Appellant was fit to work, but that the long period of continuous monitoring was likely to have increased his stress. The doctor suggested that a decision should be made as to whether or not disciplinary proceedings were to be brought.

In September 1994 the Appellant attended a management interview when the Respondents' concerns were identified to him in detail and a number of specific audits were discussed. The Respondents considered that the Appellant had not put forward acceptable explanations as to why he had failed to achieve an acceptable level of performance and decided to proceed to a formal disciplinary hearing. That capability hearing occupied no less than five days in October and November 1994. During the hearing the Appellant had every opportunity, which he took, to explore with management critical of him, the quality and content of his audit work. The chairperson of the hearing who gave evidence before the Industrial Tribunal concluded that the Appellant was not competent to continue in employment and decided he should be dismissed.

In reaching the decision to dismiss, she took into account such mitigation as the Appellant produced, but found that alternative and lesser penalties would not be appropriate, because of the Appellant's inability to recognise that his work was unacceptable. Her decision letter set out in the schedules annexed to it in great detail the issues considered at the capability hearing and the reasons why alternative employment with the Respondent was not a practical alternative. The Appellant appealed against that decision. His appeal was considered on 21 February 1995. The decision to dismiss was confirmed.

Before the Industrial Tribunal the Appellant asserted that from May 1992 onwards there was a conspiracy between his managers to dismiss him. He further alleged that the dismissal letter was inaccurate and biased and was permitted to question the chairperson in an attempt to make good his allegations. In respect of each alleged inaccuracy the chairperson was able to demonstrate the factual basis for her conclusions. Having heard evidence over three days, the Industrial Tribunal found that the Respondents were entitled to monitor the Appellant's work, that the monitoring was a reasonable and appropriate way to seek to support the Appellant and to achieve improvements in his performance. Further, the Tribunal found that the capability hearing was properly conducted and the evidence at that hearing fully justified the conclusion that the Appellant's work was below standard. In particular, the Tribunal found that the Appellant's attitude throughout the period of monitoring and indeed through his evidence at the Tribunal hearing, indicated his inability to recognise the poor quality of a significant part of his work.

The Tribunal was further satisfied that there was more than enough evidence for the Respondents to take the decisions that they did. They expressed their conclusions in this way:

"19. All these findings have led the Tribunal to the conclusion that the Respondents had grounds for questioning the Applicant's competence, that they gave him a very substantial time in which to improve, and that they properly concluded that although Mr Jagpal might have had the capacity to improve, his attitude to his work and to his managers revealed that what he was incapable of was any capacity to recognise that his performance was not up to standard and needed to be improved. The Tribunal is satisfied that the Applicant was given sufficient opportunity to improve and was fairly dealt with at both the disciplinary hearing and the appeal which followed. The Tribunal has taken account of all the circumstances of the case,... and has come to the conclusion that the decision to dismiss rather than to apply any other disciplinary sanction or to redeploy him was fair,..."

The Appellant appeals on the grounds that the Industrial Tribunal erred in law taking an erroneous view of the facts and reaching unreasonable conclusions on the facts. In effect, he argues, the findings of the Tribunal were perverse, in the sense that no reasonable Tribunal properly directing itself could have reached the conclusions this Tribunal reached. He further asserted that the Tribunal was biased. An Affidavit sworn by the Appellant in support of this last ground of appeal is before us, in which the Appellant complains that the Industrial Tribunal ignored a number of pieces of evidence in reaching their decision, and thus have demonstrated bias towards him.

The Chairman's comments on the content of that Affidavit were sought by the E.A.T. The Chairman commented as follows:

"Mr Jagpal was dismissed on the grounds of lack of capability, i.e. that his performance was not meeting the standards required of him and that he was unwilling to be helped to achieve those standards. The tribunal's task was to look at the basis on which he had been dismissed to see whether the ground had been made out, and to examine whether proper procedures had been applied. We were satisfied on both counts."

In our judgment the Chairman there correctly identifies the Tribunal's task, and it is plain from the Extended Reasons given by the Tribunal that it did just that.

Before us today, Mr Holmes on behalf of the Appellant, seeks to amend the Notice of Appeal by adding a further ground, to the effect that the Industrial Tribunal erred in law in that it reached conclusions from which there was no evidence or alternatively that the conclusions it reached were perverse and that no reasonable tribunal would have reached them. It seems to us that that is saying much the same thing as was actually said in the original Notice of Appeal. Mr Holmes has striven valiantly to persuade us that the decision is flawed in its detail, and in particular, that the Tribunal was not entitled to draw the inferences it did as to why the Respondents failed to institute capability procedure earlier than they in fact did. He says that a Mr Cushway who was the officer responsible for monitoring the Appellant's performance, should have been called to give evidence and that it was wrong for the Tribunal to draw inferences in the absence of his evidence directly.

In our judgment that is not a ground of appeal which is arguable in this case. It is perfectly plain from a consideration of the decision taken as a whole, that the Tribunal considered all relevant aspects of evidence and reached the clear conclusions that they did which were in large measure findings of fact for them. They properly identified the law they had to apply to the facts as they found them. No error of law is disclosed in our judgment in the decision reached and this appeal is accordingly dismissed.