United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 845_95_1007

Appeal No. EAT/845/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th July 1996

HIS HONOUR JUDGE J HULL Q.C.

MR J A SCOULLER

MR N D WILLIS

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MR J EDWARDS          APPELLANT

MRS J CURTIS T/A ARKIVE COMPUTING           RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


APPEARANCES

For the Appellant MR J EDWARDS

(In Person)


 


JUDGE HULL Q.C.: The appellant is Mr Jonathan Edwards, who was employed by the respondent, Mrs Curtis T/A Arkive Computing. Mr Edwards is a gentleman who is now aged 26, he is qualified as a computer expert, he is programmer. Mrs Curtis has a business in computing. She, under her trading name, provides a service to about 40 firms of Medical Practitioners through something called "ESUG Limited"; that stands for Exeter Systems User Group Limited. They are practices in the NHS. Through that limited company, they make use of Mrs Curtis's services in programming computers and performing other computer services for them. Mrs Curtis's business is small and specialised. She had apparently, at the material time, two full-time and two part-time employees. Mr Edwards became one of the employees on 22nd June 1992, and he finally left the firm, being dismissed, on 17th October 1994. He then complained to the Industrial Tribunal on 11th January 1995 that he had been unfairly dismissed and he sought compensation.

The Industrial Tribunal sat at Exeter on 25th May 1995 under the Chairmanship of Mr Hildebrand, with two industrial members. They found that although Mr Edwards had been dismissed, he had not been unfairly dismissed. That was their decision which they published and registered on 20th June 1995.

Mr Edwards applied to the tribunal to review their decision. The review was refused on 27th November 1995. The tribunal gives its reasons at considerable length, having received from Mr Edwards a memorandum of something of the order of 25 pages of fairly closely typed criticism of their decision. They found that most of the matters raised were matters which they had considered and they were questions of fact. They decided that they could not review their decision, and Mr Edwards now appeals to us.

Now to see what has happened, we must look at the decision. The tribunal's decisions on questions of fact, and the reasons which they give for them, are matters for them. Our duty is simply to consider whether any error of law had been made by an Industrial Tribunal. That is because under the statute which created our jurisdiction, we have no jurisdiction whatever over facts; and applicants to tribunals have only the one opportunity to persuade the Industrial Tribunal that their version of the facts is correct, so that they are entitled to the relief which they seek from the Industrial Tribunal. I also explained to Mr Edwards that the object of today's hearing is to see whether we can discover any fairly arguable point of law, because if there is no fairly arguable point of law, it is our duty to dismiss the appeal for the simple reason that we have no jurisdiction to consider it.

We look at the decision and first and foremost, and this is very important, the tribunal having heard Mr Edwards made the following finding:

"2 ... On balance we preferred the respondent's [Mrs Curtis] evidence and accepted what she said.

It is not our duty to go behind that, we cannot possibly go behind that. The tribunal heard the evidence and we did not. What in the tribunal's view had led to the dismissal? It was of course for the employer to show the ground on which the employee had been dismissed. Putting it shortly it was like this. The only client of her firm was ESUG Limited, and they had with regard to Mr Edwards' efforts expressed grave dissatisfaction. There were various matters of complaint. Some of them, at any rate in Mrs Curtis' view, may have been justified, but she did not dismiss Mr Edwards on the basis that he was guilty of misconduct, or that he was incapable. She was satisfied that the complaints were made in good faith. She dismissed him because of the pressure that was put on her to do so by ESUG Limited in the person, I think, of a Dr Black. That pressure got stronger and stronger, and eventually it was put in the form of an ultimatum by ESUG Limited, who as I say were the only customer, "we will not have Mr Edwards employed on any work connected with us". As ESUG Limited was the sole client, of course that was an ultimatum of imperative force, if I can put it like that, it could not be overlooked or ignored by Mrs Curtis. The tribunal also had to look and see whether that was established as a reason in good faith and then go on to consider whether, having regard to the size and administrative resources of Mrs Curtis' firm, she had acted reasonably or unreasonably in treating that reason as a ground for dismissal.

Their decision is quite a long one. I am not going to refer to all of it, but in view of what Mr Edwards has said to us, I must refer to parts of it. They say in paragraph 10, after referring to various complaints by ESUG:

"10 In an attempt to improve performance, the respondent invited the applicant to have an informal meeting with her husband who is a manger in the computer software industry. A further problem had arisen on 7 September 1994 when the applicant was carrying out a "data conversion" for a practice at Dursley. A significant amount of clerical data was apparently lost. The tribunal has accepted the respondent's evidence that this loss of data resulted from an error on the applicant's part. The meeting between the respondent's husband and the applicant took place on 26 September 1994. The respondent was not herself present but she received a report from her husband. This was that the applicant had been argumentative and unresponsive to the criticisms raised. Mr Curtis asked the applicant to treat the discussion as an informal warning. Despite this discussion the applicant's performance did not improve. At about this time the directors of ESUG and particularly Dr Alan Black began to take a close interest in the difficulties arising from the applicant's employment. He wished to be informed of the applicant's response of the meeting with Mr Curtis. In late September there was a call for which the applicant was responsible which was outstanding for some 5 days without action being taken on it.

11 On 3 October the respondent met again with the applicant and said that she still had not seen a significant improvement. She did not issue a formal warning. The applicant reacted negatively to the meeting and would not accept her criticisms. On 4 October the respondent received a letter from one of the users, a practice in Bromley, in Kent, complaining that the applicant had left the modem connected by telephone for over an hour and failed to solve their problem during this period. The respondent reported the outcome of the meeting of 3 October to Dr Black later in the week.

12 Finally as a result of the failure to improve the applicant was issued with a letter dated 11 October requiring an improvement in performance. The letter was a written warning and requested a significant improvement over the following 4 weeks to ensure continued employment. The applicant treated this as notice which it was not. This letter was handed to the applicant in the course of a meeting and the applicant reacted in a negative fashion to the meeting and the letter. The outcome of the meeting was reported to Dr Black on 12 October. ..."

So here in this situation which appears to be a desperate one for Mrs Curtis and her company, there have been three occasions on which there have been attempts to take the matter up, at least three, with Mr Edwards, and on each occasion he reacted in a negative and unresponsive fashion. There was another letter they say, and then the Industrial Tribunal say:

"14 On 13 October there was a meeting between the applicant and the respondent. The respondent asked for her husband Mr Barry Curtis to attend and the applicant was accompanied by Mr Mark Gunn a fellow assistant. Following that meeting the respondent decided to suspend the applicant. She had given the applicant a copy of Dr Black's letter. After reaching the decision to suspend she spoke to Dr Black after the meeting. ... Dr Black indicated that he was not prepared to consider allowing the applicant to resume working on the system and that he lost faith in the applicant. ... Dr Black wrote again on 13 October by fax stating that he was increasingly concerned about the integrity of the system and felt that ESUG did not wish the applicant to be involved at all with the support or development of the system. A further meeting was arranged with the applicant and Mr Mark Gunn on his behalf and the respondent and Mr Curtis on 14 October. The applicant handed a letter dated 13 October [the letter from Dr Black to Mrs Curtis] ... he felt that the criticisms of him were completely subjective and he asked for the warning issued to be withdrawn. ... the applicant again disputed the complaints which were made against him ..."

Then they say in the next paragraph:

"15 ... Following the meeting ... the respondent concluded that she had to dismiss the applicant from employment. She had no function upon which she could employ the applicant. All her work related to ESUG. ESUG would not have him involved in any way in relation to the programme. She wrote a letter dated 17 October bringing his employment to an end and setting out details of payments due in respect of notice. The applicant responded by asking for the decision to be reviewed on appeal and this was arranged at a meeting on Monday 7th November. Both minutes and a tape recorded transcript of that meeting were produced to the tribunal. ..."

One would say that that gave the tribunal an unrivalled opportunity to consider the fairness of what was done on that occasion. Certainly we cannot of course have the same opportunity.

Those are the relevant facts. They say that Mrs Curtis believed her business was in danger; that is really an understatement one would have thought, in the circumstances. She must have been absolutely scared stiff that her business would be closed down by the removal of her only client.

They say in paragraph 18:

"18 Applying the law to the facts of this case the respondent has sought to establish that the reason for the dismissal was not the capability of the applicant but the pressure received from their sole customer."

They say, earlier in their decision, that Mrs Curtis had endeavoured to take the side of her employee, she had been loyal to him, and endeavoured to persuade Dr Black that matters were not as he saw them, but quite without success, and this is carrying through that aspect of it. They say that that is a legitimate reason if it is made out.:

"In this case the tribunal is satisfied that the employer has successfully demonstrated that there was substantial and unremitting third party pressure on it. Further there was no strength in any suggestion that the pressure was improper. The applicant sought to argue that the pressure resulted from ESUG's directors accepting the respondent's version of events in preference to his. The tribunal was satisfied however that ESUG was exerting pressure independently as a result of complaints made directly to it by the practices

19 Thereafter the tribunal has to apply the test of reasonableness set out in section 57(3). Should the employer have considered a redeployment elsewhere inside the organisation. The tribunal is satisfied that in this case the procedure adopted provided time for lengthy representations to be taken from the applicant both before the decision to dismiss took place and subsequently on an appeal. [They considered the question of Mr Curtis's presence but they were satisfied that that involved no unfairness and indeed resulted in improvements in the procedure] ... In those circumstances the tribunal is satisfied that having regard to the size and administrative resources of the respondent and having regard to equity and the substantial merits of the case the respondent acted fairly in reaching the decision to dismiss the applicant. The applicant's claim accordingly fails."

About that, Mr Edwards says that the tribunal was guilty of a number of errors in failing to give effect to evidence which they heard and in preferring evidence (wrongly) to his evidence. He said that Mrs Curtis made various admissions in the course of her evidence. He says that a letter which was produced at the tribunal, which they accepted was from Dr Black, was a forgery, it was not written when it was said to be written and so forth. We have had the benefit of looking, as I say, at 25 pages of representations which he made to the tribunal, which the tribunal dealt with faithfully and rejected saying that they had decided those matters.

Underlying this whole matter is Mr Edwards' assertion that Mrs Curtis was not acting in good faith and on the basis which she said that she was; and that Dr Black's complaints were not in any way justified and what is more were being greatly exaggerated by Mrs Curtis. It appears to us that the tribunal had these matters very fairly in front of them. Mr Edwards is well capable of putting his case, he has laid before us submissions several pages long based on his study of other cases. It is perfectly true that in those other cases this tribunal has on occasion held that the procedure was inadequate, or that a tribunal has not done its job properly in investigating the facts.

The question we have to ask ourselves is whether, applying the ordinary principles we do, we can find any evidence that this tribunal went wrong in law in any way. That would include failing to pay attention to the evidence, failing to give proper effect to evidence and so forth. We can find absolutely no evidence at all that this tribunal did not do its job properly. It is remarkable that it was able to get through its task in a day, bearing in mind the wealth of material which was laid before it. They seem to have looked at that thoroughly. The basic reason why Mr Edwards was unsuccessful was that the respondent's evidence was preferred to his. No doubt if Mr Edwards' evidence had been accepted in full there would be a great deal to say, but the tribunal had the duty of deciding between what Mr Edwards told them and what the respondent told them. They carried out that duty. As I say, we are only a tribunal of law, we cannot find any error of law and certainly we cannot find any fairly arguable point of law. In those circumstances it is our duty to dismiss the appeal at this stage.