United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW BURNS Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE WALL

1. This is the preliminary hearing of an appeal by Mr Thorneloe against the decision of the Employment Tribunal held at London (South) on 28^th February 2001, 1^st & 2^nd March 2001 and promulgated on 26^th March 2001. The unanimous decision of the Tribunal was that the Appellant had insufficient service to be entitled to claim protection from unfair dismissal and secondly, that his claims of unfair dismissal and breach of contract were unsuccessful and were dismissed.
2. The facts of the case are slightly unusual because the Appellant had originally been employed by a company called United Friendly Financial Planning on 21^st July 1997 and he had, by coincidence, applied to the present Respondent, as the Tribunal found, for employment in June 1997 and had been unsuccessful. As fate would have it, little more than two months later, the Respondent purchased United Friendly Financial Planning and the Applicant thus became an employee of the Respondent company, he says being obliged to work for the very person who had refused to employ him.
3. The Appellant was originally dismissed on 28^th November 1997 for failing a G1 Case Study. He applied to the Industrial Tribunal in previous proceedings and those proceedings, by a decision entered and sent on 26^th May 1998, were concluded by compromise and after quite a lengthy delay the Appellant was re-engaged as an employee with the Respondent with effect from 7^th June 1999.
4. The first point considered by the Tribunal was whether there was insufficient length of service because there had been no continuity of employment. That factor in the case took itself a slightly unusual course because there was initially a concession by the Respondent. However, at the conclusion of the evidence, after some two and a half days, the Tribunal reconsidered the matter and came to the view that it was not something that could be dealt with by concession because it was a matter of law; and as a matter of law, having considered it, the Tribunal came to the conclusion that the Appellant did not have sufficient service to be entitled to a claim for protection from unfair dismissal. However, in case they were wrong in relation to that, the reasons given by the Tribunal, at some length and in some detail, go on to consider the merits of the dismissal and to reach a conclusion about it.
5. The Appellant also made a number of claims, which are again before us and contained in his Notice of Appeal, in relation to an alleged breach of contract by the Respondent and I will turn back to that in a moment. Of this appeal, the Appellant faces the immediate difficulty in relation to unfair dismissal that, even if there was jurisdiction for the Tribunal to decide it, their decision was essentially, if not entirely, one of fact and consisted of plainly factual findings which they were entitled to make. It is, therefore, clear to us that if there were jurisdiction, there would be no point in returning the matter to the Tribunal; indeed it would not be open to us to return the matter to the Tribunal, because we can detect no error of law consequent upon the findings of fact and the conclusions the Tribunal reached in relation to unfair dismissal.
6. Most helpfully today, Counsel instructed by ELAAS to assist Mr Thorneloe, came up with a point of law in relation to the question of continuity of employment. He pointed out that there were two inconsistent authorities in this Tribunal, Ingram v Foxon [1985] and Morris v Walsh Western UK Ltd [1997]. For the record we record our conclusion that the point as to continuity of employment is arguable; but having made that point, and having accepted that that is an arguable point, we need, I think, to go on to look briefly at the reasons given by the Tribunal both in the context of unfair dismissal, but more importantly, in the context of breach of contract as alleged by Mr Thorneloe. We do so because what appears to have happened is that during the course of their deliberations the Tribunal made a number of findings of fact which are clearly relevant to both the unfair dismissal issue and the breach of contract issue, and although there is, in our view, no case in relation to unfair dismissal on the fact founds, we need nonetheless to look at those facts in the context of Mr Thorneloe's claims for breach of contract.
7. The Tribunal found that the Appellant's job, in a nutshell, was to act as Financial Advisor selling a variety of the Respondent's "products" to customers. He was given, when he was qualified to go out into the field, two geographical areas designated on the map in the West/South West Area of Greater London, covering in broad terms Farnham Common to the West and an area of Hounslow in the South-West. The Appellant accepted in his evidence before the Tribunal that one of the regions was potentially a good region although he had reservations about the other region. The total number of names and addresses provided, the Tribunal found, was in the region of 1300. The Tribunal accepted the Appellant's case that a measurable number of those names and addresses would be people who had since moved or had no burning interest in purchasing the company's products. On the other hand, the Tribunal found it was obvious that there must have been several hundred who were worth approaching with a view to furthering the Respondent's business.
8. The Tribunal then goes on the deal with the question of targets and the difficulties involved for salesmen in achieving the targets and demonstrating that targets are achieved. It is, they said

"recognised and accepted by the Company that it is possible for such an employee to be very conscientious and hardworking in such activities without producing results [but that] was a different problem from the problem demonstrated on the facts before us,"

9. In paragraph 10 they go on to say this

"10. In this case it is clear that the Applicant's Line Manager, Mr Bernhardt, reasonably came to the conclusion that it was necessary to direct and instruct the Applicant as to how he should go about his weekly routine for canvassing and obtaining business. He came to this conclusion, we find reasonably, after a period in the Autumn when the Applicant was not appearing to achieve much contact with potential customers let alone actually achieving completed business.

11. It is not in dispute on the evidence that, from the end of December through to the Applicant's dismissal on 1 March, the Applicant was set strictly defined "review periods" with a strictly defined target within each review period of achieving 7 visits to be booked and 5 visits to be achieved. The perfectly reasonable objective of that setting of targets was to enable the Applicant to set up an ongoing rolling timetable of booking visits and going on visits. Furthermore, the visits to be achieved were simply the first visit i.e. the fact finding visit at which the fact finding questionnaire was to be completed.

12. The Applicant accepted in his evidence before us that in each of the review periods he did not achieve the targets set and in particular and more demonstrably he did not achieve the targets of visits which he actually made.

10. The Tribunal went on in paragraph 13

"13. From the very voluminous correspondence it is quite clear, throughout the whole period when these review periods were being monitored and the Applicant was receiving more and more serious oral and written warnings culminating in a final written warning, that the Applicant was putting forward vast quantities of arguments, explanations, excuses and mitigation for why he was not achieving targets.

14. In our own Tribunal hearing we have investigated as part of the Applicant's case his main case and explanation as to why he was unsuccessful at meeting those targets. He has also argued in very clear and forceful terms that the targets which were set were, themselves, in any event unreasonable and onerous."

11. The Tribunal then makes this significant finding

"15. We have come to the conclusion that Mr Bernhardt was entitled in due course to come to the conclusion that the Applicant was not putting forward valid and legitimate reasons why he was not meeting the targets. He was entitled, we find, to come to the conclusion that some of the explanations put forward by the Applicant really had no validity at all. It was not necessary to decide whether the Applicant was behaving in the fashion in which he was behaving "deliberately". It was probably impossible to come to a firm conclusion about that although Mr Bernhardt certainly, as time went by, felt that the Applicant appeared to be acting in that way.

16. We certainly agree with Mr Bernhardt in his view that it was most surprising that the Applicant chose, for example, to spend a number of hours Snowpaking a minor typing mistake on some 700 mail shot letters or, for example, spending many hours with customers in respect of whom he was not earning commission and/or was not qualified to do the type of business in question. Had we been in Mr Bernhardt's position, we believe that we would have had a similar reaction to the voluminous memoranda, grievances, protests, excuses and explanations which the Applicant was putting forward.

17. Furthermore, Mr Bernhardt was entitled, we find, to take into account that the Applicant is a very experienced salesman who had worked for twenty or more years in one industry or another as a salesman. It is clear that Mr Bernhardt was impressed with his telephone ability and manner and as we could see from one or two accompanied visits, the Applicant clearly performed well with customers on a face to face basis. The real problem appears to have been that the Applicant either would not or could nor adapt to a weekly routine of booking calls, making appointments and succeeding in keeping those appointments. There is no doubt we find, on any view of the history, that the Applicant must have spent considerable time generating the large quantity of paperwork which he himself did generate. We cannot accept that sort of quantity of paperwork and the time it would have taken was something which the Applicant was entitled to put forward as mitigation for failing to meet targets."

12. They then went on to find that

"19. The targets set by Mr Bernhardt were reasonable targets. They were well below the minimum target specifically recorded in the Company documentation. The Applicant never achieved those targets throughout the 9/10 months of his employment. Furthermore, as has been noted above, this was not the case of a young man who had no idea about selling and this kind of business. The Respondent were entitled to expect the Applicant to get quickly into his stride once he had mastered the particular products which the Respondent were marketing."

13. The Tribunal then went on to recognise the difficulties faced by Financial Advisers or salesman but they concluded that

"Mr Bernhardt spent a considerable quantity of time helping the Applicant, going out on visits with him and explaining what he had to do and how he had to do it. The Applicant hinted in his evidence in a general kind of way that Senior Managers resented the fact that he had been re-employed after the last Tribunal hearing and was setting him up to fail. He provided no specific evidence of that. Indeed, we find the whole proposition inherently improbable since there was no compulsion or sanction under the original Tribunal proceedings why the Applicant should be taken back at all and had that been the intention of Senior Managers we believe that the simple solution would have been not to take the Applicant back at all.

21. On the contrary, the Respondent allowed the Applicant to re-sit exams on a number of occasions. He was sent on training courses – Mr Bernhardt estimates that he spent some 32 hours over the period specifically helping him to be successful. It is obvious that it is expensive to have to recruit and re-train a new adviser and that commercially speaking it was plainly in the Respondent's interest to encourage the Applicant to be successful and not the other way round."

14. They found as a fact that the Appellant was given sufficient opportunity to improve, the goals he had to achieve were precisely set down for him and they found that

" . if he had not become distracted by a whole lot of other activity he could quite comfortably have met the targets which were set to him. It was, we find, his own decision to spend much more time on other matters than achieving his targets and that is not something which renders unreasonable the decision that in the end he was not going to improve ad the Respondent were, therefore, in our judgment entitled to dismiss."

15. They then go on to consider the question under Section 98 and then they turn, having made those findings, to deal with the allegations of breach of contract. In paragraph 24 they say

"24. The Applicant also alleged breach of contract. His principal claim was that he had a contractual right to be sent on G2 Training. He based this contractual right on the fact that in 1997 he had been sent on G2 Training. We do not accept that the Applicant had a contractual right to go on any training at any particular time. It was obviously part of his employee development that, at the appropriate time, he should be sent on the appropriate level of training. This would be, we find, a matter for the Company to decide according to the Company's needs and requirements. We dismiss therefore that claim. In any event, we find that it made not the slightest difference to the outcome of our proceedings since the Applicant was apparently not even able to obtain first appointment meetings. When pressed, he could not cite a specific example where a G2 License in fact made the slightest difference. Indeed, we regret to comment that it was a feature of the Applicant's evidence before us as indeed it was in the voluminous written documentation that he was putting forward arguments about hypothetical situations and hypothetical problems which had hardly ever actually in fact arisen and/or were extremely unlikely to do so.

25. In so far as the Applicant, in the course of his evidence, complained that he was deprived of commission on one deal or another, we find that there was no clear cut contractual rules about the sharing of commission and that in the event of dispute it was for the Line Manager, Mr Bernhardt, to arbitrate and allocate the correct split of commission as we find he did in fact do on the very few disputed occasions when commission was an issue.

26. For the foregoing reasons the Applicant's claims of breach of contract are dismissed."

16. If one turns back to the Notice of Appeal, filed by Mr Thorneloe, one sees the first ground in relation to breach of contract was failing to provide the G2 Training Course as per the contract and verbal variations. Then he gives details of that. Paragraph 1, however, is expressly covered by the finding made by the Tribunal, and fails.
17. Paragraph 2 asserts that the Respondent was in breach of contract by giving at least one account on his designated list (the case he has referred to as I Poony) to another adviser, thus denying him achievement targets and commission leading to constructive dismissal. Once again that is an issue of fact and the Tribunal dealt with it. We cannot interfere.
18. The third ground alleges breach of contract by the Respondent by deliberately shortening their two week disciplinary review period on two occasions leading to "constructive dismissal", of which he gives two specific examples. Ground four alleges failure by the Employment Tribunal to approve his application for the Respondent's defence evidence to be struck out, that being a different point which I ought to turn to just briefly in a moment. In relation to the third ground it is quite clear that the Tribunal found to the contrary that the periods given were entirely appropriate and sufficient.
19. As far as the strike out point is concerned, whilst I appreciate that Mr Thorneloe feels strongly about it, he must appreciate that procedures are designed to assist the Tribunal in the compilation of evidence and here, clearly, no detriment to the Tribunal or his case was caused by a slight delay in exchanging statements.
20. I have deliberately read substantially from the decision below because, although, the Tribunal in reaching it was largely directing its mind to the issue of unfair dismissal, it is perfectly plain to us that the Tribunal has, in fact, covered in its findings of fact all the breaches which are alleged by the Appellant. It has found against him in relation to them on the facts and as I explained to the Appellant, in the course of the exchanges we had earlier, we are a Tribunal of law and we can detect no error of law in the Employment Tribunal's decision. The only potential error may relate to the question of jurisdiction over continuous employment but, since the facts are plainly within the Tribunal's discretion and have been found appropriately by the Tribunal on proper material, there is no point in allowing this appeal to go forward on the one point of continuity of employment and it will accordingly be dismissed at this stage.