United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 725_95_2506

Appeal No. EAT/725/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th June 1996

HIS HONOUR JUDGE PETER CLARK

MRS T MARSLAND

MR A D SCOTT

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SHARPE & FISHER LTD          APPELLANTS

MR R ALDRIDGE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR L G WILDING

(Personnel Adviser)

Personnel Management

Services

Midland Buildings

Corporation Street

Chesterfield

S41 7TP

For the Respondents MR J BOWERS

(of Counsel)

Samuels

Solicitors

19b Alexandra Road

Barnstaple

Devon

EX32 8BA


 


JUDGE PETER CLARK: This is an appeal by the employer, Sharpe & Fisher Ltd, against a decision of the Cardiff Industrial Tribunal sitting on 2nd November 1994 and 28th February 1995, that the respondent employee, Mr Robin Aldridge, was unfairly dismissed. Extended reasons for that decision are dated 15th May 1995.

Mr Aldridge commenced employment with the appellants as a sales representative on 2nd January 1974. He was dismissed after some 20 years service, with effect from 20th May 1994.

The problem, in a nutshell, was that the respondent consistently failed to hit his budget sales targets. There was a history of meetings with management and warnings about his performance. In particular he received written warnings on 12th July 1991 and 31st August 1993. In October 1993, the Industrial Tribunal found, Mr Aldridge was given an ultimatum by his manager, Mr Connelly that unless things drastically improved further disciplinary action would be taken.

There was no improvement and on 14th March 1994 Mr Connelly wrote to Mr Aldridge. The final paragraph of that letter read:

"As stated in my previous letter of 11 February 1994 we were looking for a significant increase in the sales figures for February. Unfortunately there is still no sign of an improvement and therefore we have no alternative than to issue you with your second and final written warning."

Subsequent sales figures were unsatisfactory and on 17th May 1994 a further meeting took place between Mr Connelly and Mr Aldridge. Mr Connelly concluded at that stage that things were not improving and never would. He dismissed Mr Aldridge at a further meeting held on 20th May 1994.

Against that factual background the Industrial Tribunal reached the decision that the dismissal was unfair for reasons set out in paragraph 21 of the extended reasons:

"21. We also direct that a reasonable employer apart from showing support and training, and/or direction , for the failing representatives must when the time comes indicate to a sales person, especially one who according to Mr Connelly, was an individual who needed prodding to achieve, should have brought home to that individual especially given the experience that the applicant had, the fact that if the sales figures were not reached, his employment would be terminated and that a reasonable period to achieve specific sales targets should be placed unequivocally before him. Especially in this instance when an ultimatum was issued in October 1993 and never acted upon despite a continued failure in milk target figures for the period immediately following."

In this appeal Mr Wilding, on behalf of the employers, takes essentially two points. First, he says that the Industrial Tribunal ought to have made a specific finding as to whether, on 17th May 1994, Mr Connelly could reasonably conclude that the respondent's performance never would improve; that had it made such a finding in favour of the employer it should then have gone on to consider whether any further warning of the type which the Industrial Tribunal held a reasonable employer would have given in the circumstances of this case would have been utterly useless; if so, then it would be open to the Industrial Tribunal to conclude that the dismissal was fair under the principle enunciated by Lord MacKay LC in Polkey v A E Dayton Ltd [1988] ICR 142 .

Second, he says that in paragraph 21 of the reasons the Industrial Tribunal has substituted its own view for that of the employer in applying a general, rather than specific approach to the question of whether it was reasonable for the employer to dismiss when it did.

As to the first point, we accept Mr Bowers submission that there are two answers. First, that by holding that the employer ought, acting as a reasonable employer, to have given Mr Aldridge a further 12 weeks to improve, coupled with a clear and unequivocal warning as to dismissal if he did not improve, the tribunal implicitly found that there was a small chance of improvement. Secondly, that even if it accepted that Mr Connelly had reached a reasonable conclusion as at 17th May 1994, it was open to the Industrial Tribunal to conclude that a reasonable employer would nevertheless have taken the steps identified in paragraph 21 of the reasons, rather than dismiss at that stage. That seems to us to be essentially a question of fact and degree for the Industrial Tribunal with which it would not be right for us to interfere.

We also reject Mr Wilding's second submission. We are satisfied, looking at paragraph 24 of the reasons, that the Industrial Tribunal was alert to the dangers of substituting its own view for that of a reasonable employer. Further, in our judgment the Industrial Tribunal at paragraph 21, was applying the reasonable employer test to the particular facts of this case.

In these circumstances, all other arguments, particularly as to the reason for dismissal and the challenge to the basic award, having been expressly abandoned by Mr Wilding, we have concluded that this appeal must be dismissed.

The application for costs by the respondent is refused.