United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N HART Solicitor) Messrs Slee Blackwell Solicitors 10 Cross Street Barnstaple Devon EX31 1BA
For the Respondents	MS A MILLAR (of Counsel) Messrs Langleys & Co Solicitors 199 Bishopsgate London EC2M 3TY


 


JUDGE PETER CLARK: The principal question in this appeal, brought by Mr Farrer, the applicant before the London (South) Industrial Tribunal, against that tribunal's decision, promulgated with extended reasons on 23rd December 1996, dismissing his complaint of unfair dismissal against his former employers, Amari Plastics Ltd, the respondent, is whether the tribunal fell into error in concluding that the reason for dismissal was some other substantial reason, and the consequent finding that dismissal was fair on that basis, as opposed to finding that the reason related to the applicant's conduct, in which event, it appears from paragraph 21 of the tribunal's reasons, it would have concluded that the dismissal was, at any rate procedurally, unfair.

The material facts, as found by the tribunal, were these. The applicant first commenced employment with the respondent in 1984. He began as a trainee, then became a Branch Manager at the Park Royal Branch in North West London and finally was appointed product manager at the Head Office in Weybridge in March 1991. At the end of 1991 he left the employment in order to travel.

Following his return to the United Kingdom he was re-employed in late 1993 as product manager at Weybridge. His contract of employment required him to carry out any other work reasonably necessary to ensure the efficient operation of the office/warehouse at Weybridge.

In September 1994 the respondent's Managing Director, Mr Piggott, altered the applicant's job title from engineering products manager to product manager, engineering plastics. In practical terms that involved the applicant spending less time on the road selling, and more time based in the Head Office. This alteration in his role reflected a restructuring effected by Mr Piggott at that time.

Between September 1994 and 26th January 1996, on which date the applicant was dismissed, he was the subject of disciplinary action which may be summarised as follows:

(1) On 25th October 1994 the applicant's then line manger, Mr Hatton, wrote to him confirming a verbal warning for poor time-keeping given on 7th October. He was warned that a reoccurrence could result in his dismissal, and that the warning would remain on his file for 12 months.

(2) An incident arose in February 1995 over some carpet which the applicant had removed from the Head Office premises. The applicant contended that this incident influenced Mr Piggott's subsequent treatment of him; that was denied in evidence by Mr Piggott.

(3) By a letter dated 16th February 1996 Mr Piggott raised two other disciplinary matters; the applicant's late arrival at the Cardiff Branch on 15th February, and his failure to prepare an action list of things to be done. The applicant responded by letter of 15th March, assuring Mr Piggott of his ambition to succeed with the respondent.

(4) On 22nd November 1995 Mr Piggott again wrote to the applicant confirming a further verbal warning in relation to time-keeping and failure in what we shall describe as 'office routines'.

(5) On 15th January 1996 Mr Piggott wrote to the applicant concerning an incident that day when the applicant had used foul and abusive language on the telephone to the Romford Branch manger in the presence of other employees.

We come then to a meeting held between Mr Piggott and the applicant on 24th January 1996 which the tribunal found fell into two parts. The first part was a disciplinary hearing which dealt with a formal warning in relation to office routines and a verbal warning relating to mileage and call reports following in particular a visit by the applicant to Norwich.

The second part of the meeting related to the applicant's future in the respondent company. Mr Piggott told him that he proposed moving him to the post of area sales representative based at Park Royal. His salary and benefits package would remain the same. The applicant was asked to consider his response and discuss the proposed post and work involved with Mr Everist, the Park Royal Branch manager. He was also told at the meeting that if he did not accept the new post he would be dismissed.

The tribunal found, and there was evidence from Mr Piggott to support this factual finding, that the applicant did not speak to Mr Everist, but simply informed Mr Piggott that he would not accept the new post.

Consequently, Mr Piggott wrote to the applicant on 26th January. We have read that letter. It begins with confirmation of the formal warning in relation to office routine; it confirms the verbal warning relating to mileage and call reports; and it concludes by saying this:

"In view of foregoing I no longer consider that you have the discipline required of a Product Manager and cannot continue in that role. However, I do believe that you have skills such as sales, product knowledge and face to face negotiation which are more suited to a sales position. I therefore offered you the opportunity of filling the role of Area Sales Representative for our Park Royal branch. This had the added advantage that you actually live in the middle of the area you would be responsible for and, as you have worked for the Park Royal deport before, your knowledge of the area and customer base would have been of considerable benefit.

I made it clear that your current benefits package would not be affected and that if you did not take up this offer I would have no option but to terminate your employment. Accordingly, I asked you to discuss this further with Bob Everist, the Park Royal manager. Unfortunately you declined the opportunity of this role and your whole attitude and exaggerated references to "not want to knock of £50 accounts" has lead me to the inescapable conclusion that there can be no future for you with this Company.

I have therefore decided to terminate your contract with immediate effect. ..."

The letter goes on to deal with pay in lieu of notice and to remind the applicant of his right of internal appeal. He did not exercise that right.

The Industrial Tribunal Conclusions

The tribunal considered the parties' respective cases as to the reason or principal reason for dismissal under s. 98 of the Employment Rights Act 1996. It was the applicant's case that the reason for dismissal related to his disciplinary record, that is a reason relating to his conduct and/or capability. It was the respondent's case that the efficient management of the business required changes in staff responsibilities, including the transfer of the applicant to sales related work for which Mr Piggott believed the applicant was more suited. That was characterised as some other substantial reason, a potentially fair reason for dismissal. The tribunal accepted the reason put forward by the respondent. It went on to find that that was a sufficient reason for dismissal and that the dismissal was fair, whilst observing that had it found that the reason related to the applicant's conduct or capability it may well have found the dismissal to be procedurally unfair.

The Appeal

The short point taken by Mr Hart on behalf of the applicant is that the Industrial Tribunal was not entitled in law to find that the reason, or principal reason for dismissal was some other substantial reason, particularly in light of the way that Mr Piggott had expressed himself in the dismissal letter to which we have referred.

It seems to us that we must ask ourselves two questions:

(1) how should an Industrial Tribunal approach the task of finding the reason or principal reason for dismissal; and

(2) did this Industrial Tribunal reach an impermissible finding in law on the facts of this case?

As to the first question, as Cairns LJ put the matter in Abernethy v Mott Hay and Anderson [1974] ICR 323:

"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee."

The reason or principal reason for dismissal will be the proximate cause of the dismissal.

It is for the tribunal of fact to assess the evidence of the dismissing manager in particular, here Mr Piggott, in order to discern, in the light of all the surrounding circumstances, whether the reason put forward by him is the genuine reason for dismissal.

This tribunal accepted Mr Piggott's evidence and thus reached its conclusion as to the reason or principal reason for dismissal. It was open to the tribunal to reject that reason as not being the true or genuine reason; it chose not to do so.

Can that finding be said to be an impermissible conclusion? To reach that point we must find that it is a perverse conclusion. That is a substantial hurdle for the appellant to clear as the cases, including British Telecommunications Plc v Sheridan [1990] IRLR 27, Piggott Bros. v Jackson [1991] IRLR 309 and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, show. In this case there was evidence to support the tribunal's conclusion; there is no indication, in our judgment, that the tribunal has been guilty of a patent self-misdirection in law; the decision cannot be said to be so plainly wrong that it is perverse.

In these circumstances we have concluded that no error of law is made out and, accordingly, this appeal must be dismissed.