Appeal No. EAT/19/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 3rd February 1992

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR J A POWELL

	MS P SMITH

THOMAS COOK GROUP LTD	APPELLANTS

G MORRIS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G ALDOUS
	(Of Counsel)
Hegarty & Co
16 Lincoln Road
Peterborough
PE1 2RG

For the Respondent	The Respondent
in person

	MR JUSTICE PILL:  This is an appeal by Thomas Cook Group Ltd from a Decision of the Industrial Tribunal at Bedford made on the 28th October 1989 whereby they found that Mr G Morris had been unfairly dismissed. 

	 The Decision of the Tribunal was by a majority.  

	The Tribunal gave a reasoned judgment which sets out the views both of the majority and of the dissenting Member.  It was based upon a dismissal set out in a letter which was followed by a further letter after Mr Morris had sought to appeal against the decision to dismiss him.

	I put the point which arises very shortly before considering the facts in a little more detail.  Mr Aldous, Counsel on behalf of the employers, submits that the majority came to a conclusion which was perverse in that they found that the allegedly poor performance of Mr Morris as an employee was a factor in the decision to dismiss.  The only reasonable finding, Mr Aldous submits, is that when Mr Morris was dismissed his allegedly poor sales performance was simply an illustration of his unhelpful attitude and not a separate head of dismissal in itself.  In his written notice dated the 22nd January 1990, Mr Morris states that he wishes to resists the appeal to this Tribunal on the ground that the Company have not shown that the Tribunal's Decision was perverse.

	Mr Morris is now 52 years old.  He had commenced his work for the employers as long ago as the 2nd August 1955 and had therefore been employed by them for over 30 years when he was dismissed by letter of 27th February 1989.  He worked in the airfare warehouse and acquired a considerable knowledge of the transport business.  From 1985 onwards his performance was monitored closely by his employers and there is no doubt that points of complaint were made by them about his allegedly unhelpful attitude.

	We need not go through the subsequent history in detail in view of the narrow point taken by the employers upon this appeal. In saying that it is narrow I am not referring to its merit or otherwise.

	The Tribunal accepted that there had been a verbal warning.  There was a disciplinary hearing on the 22nd June 1988 after which a final written warning was given.  There was a further meeting after the final written warning on the 11th January 1989, when Mr Morris's attitude to his work was the subject of discussion.

	Before dealing with the point upon which they made their Decision, the Tribunal set out a number of other points which had been the subject of dispute and we need not deal with these in detail.  There were findings on no fewer than five points which are not directly material to the point now at issue.  It is at paragraph 30 of their Decision that the Tribunal come to the relevant matter, though there is at paragraph 18 during the recital of facts a reference to a review of the performance of employees in relation to sales which had been introduced.

	Paragraph 30 reads:
"The next matter to consider is whether or not the respondents have shown a reason.  [That is a reason for dismissal] The matters canvassed against the applicant relate both to conduct and to capability.  They cover attitude, non-compliance with instructions, and poor performance.  Conduct is the major factor but with capability, that is to say poor performance, being significant.  The label used, ie `capability' or `conduct' is not important.  We accept that he was dismissed for the reasons set out in the letter of the 27 February 1989 (R1/89/90) as read with the letter dismissing his appeal, that of the 17 April 1989, R1/116 and R1/117;  we accept they set out the reasons for the dismissal.  We accept he was dismissed for conduct with capability a significant factor as well."

Reference is then made to the fact that Mr Morris was a long serving employee and to the sequence of events up to the date of dismissal.

	The majority then stated this conclusion:
"34.	   Bearing these points in mind  one of the matters brought up against him at the final disciplinary hearing was poor performance as related to sales.  The first time this had been brought up against the applicant formally was at the meeting of the 17 February 1989.  The applicant had been aware of poor sales in February from what Jean Revell told him and he was obviously concerned and asked to see his figures on a regular basis (see R1.85).  It was unfair to use the sales performance against him as a significant factor in the decision to dismiss without having brought up the question of poor sales before this.  The final written warning is fairly precise, he had shown he was capable of improvement, and bearing in mind his long service it was unfair to dismiss him without giving him this chance...........

36. 	   We have borne in mind that in the letter of dismissal in the paragraph dealing with poor performance it is linked to attitude and attitude is one of the matters dealt with by the final written warning.  However, we are satisfied it was not just an example of poor attitude but rather a heading of complaint in itself."

	There is no reference to the fact that on past occasions when complaint had been made there had been improvements in Mr Morris's approach, as seen by his employers, and there could well be improvement in the area of sales, if indeed, and this is very much in dispute, the previous performance had been less than satisfactory.

	The reasoning of the dissenting Member is set out at paragraph 40 and he stated this:
"At that meeting [that is the meeting shortly before dismissal] the matter of sales performance is an example of attitude.  He accepts that if poor performance was a category of complaint in itself it would be unfair to dismiss the applicant.  However, it was not a category of complaint in itself, but rather an example of his poor attitude."

 	On behalf of the employers Mr Aldous accepts that if, as the dissenting Member put it:
"poor performance was a category of complaint in itself it would be unfair to dismiss the applicant."

For that reason it is unnecessary to go into what might have happened if Mr Morris had been given a further opportunity and indeed it is irrelevant to consider the merits of his performance.  Before this Tribunal Mr Morris understandably has sought to point out by reference to the documents that there was no substance in the suggestion that his performance was unsatisfactory.  That is in issue, but it would be quite inappropriate for us to determine that point as a matter of substance.  The issue is whether complaints about performance, whether justified or not, were a significant factor in the dismissal in fact effected.

	We turn then to the relevant letters.  The dismissal letter of the 27th February 1989 stated:
"You have been unable to satisfy the panel in the following areas:

1)  Non compliance with superiors instructions,...........

2)  Unhelpful attitude,.......

3)  Poor performance, which the Company believes results directly from your attitude and your failure to comply with managerial instructions.  Your sales performance is inadequate and falls far short of that which could be reasonably expected from such an experienced member of the Department.

.............................

Under these circumstances we cannot continue your employment with the Company, therefore you are dismissed, with 12 weeks pay in lieu of notice.  The dismissal is with immediate effect."

	Following his appeal a more detailed letter signed by the employer's General Manager was sent to Mr Morris on the 17th April 1989.  The Tribunal in coming to their conclusion of fact had regard to the contents of this letter as well as to those of the dismissal letter.  The letter states:
"In reviewing your appeal we have considered each of the areas identified in the original dismissal letter of 27th February 1989."

More detail is included but the numbered paragraphs have the same format.  Paragraph 1 is headed:
"Non-compliance with superiors instructions"

Paragraph 2:
"Unhelpful Attitude"

Paragraph 3 has the heading:
"Poor Performance

Given your level of experience and knowledge your sales performance has been surprisingly low.  We acknowledge the progress you made PMI terms but clearly the most important measure must be sales."

There is then further material said to support that conclusion.  Following the three numbered paragraphs appears this paragraph:
"In summary, whilst accepting a number of issues were contested, we have concluded that the three areas highlighted in the dismissal hearing remain as areas of great concern.  On the basis of the evidence we heard we have decided, with regret, to reject your appeal and let the original dismissal decision stand."

	Mr Aldous bases his case upon the first sentence of paragraph 3 of the dismissal letter. He rightly submits that the majority of the Tribunal attached importance to that sentence.  Mr Aldous submits that it is the critical sentence.  There is nothing which detracts from it, he submits, in the further letter written following the appeal hearing.  This is Mr Aldous's submission.  The way that sentence is worded, he says, proves that "poor performance" was regarded in the decision to dismiss merely as one aspect of the allegedly unhelpful attitude of Mr Morris.  It was not a separate reason for dismissal and the majority of the Tribunal were perverse in reaching the conclusion that it was a separate ground for dismissal.  It was merely, he submits, an illustration of unhelpful attitude which together with alleged non-compliance with instructions was the reason for dismissal.

	Mr Morris submits that as a matter of substance the criticism of his sales performance was raised for the first time, on the 17th February, that is shortly before the decision to dismiss.  He submits that the majority of the Tribunal were correct in reaching the conclusion that his allegedly poor sales performance, and I repeat, he takes issue as to whether it was poor, was a substantive and significant reason for his dismissal.  He has referred us to a letter which he received shortly before the dismissal and that appears at page 78 of the Employer's Bundle following a note of a meeting held on the 17th February 1989.  In the letter to Mr Morris the Leisure Air Development Manager stated:
"Since the Final Written Warning, dated 23 June 1988, was issued to you there have been repeated instances of non compliance with instructions, unhelpful attitude and poor performance...................  In addition, we must take into account your unsatisfactory sales performance in comparison with the other members of the department."

In the view of this Tribunal that indicates that poor performance was considered a factor by the employers.  There is, however, force in Mr Aldous's point that since the Industrial Tribunal based their Decision upon the contents of the other documents we should not attach weight to what has gone before.

	We are in no doubt, having considered the relevant letters, that it cannot be submitted that the majority of the Tribunal were perverse in holding that allegedly "poor performance" was a significant factor in the Decision.  We are unanimously of that view.  Mr Aldous has helpfully sought to analyse the sentence upon which he relies.  He points out that the words following "poor performance" refer back, by the use of the word "attitude" and the use of the expression "failure to comply with managerial instructions", to the other complaints made about Mr Morris by his employers.  Nevertheless, this is a separate paragraph;  it begins with the words "poor performance" as does the appropriate paragraph in the fuller letter written on the 17th April 1989.  That has an underlined heading "Poor Performance" and in that letter there is no reference back to the earlier points of complaint made.  Had "poor performance", as Mr Aldous seeks to establish, been simply an aspect of unhelpful attitude and treated as such we believe that the letter would have been worded quite differently and on the wording which was used, which merely speculates, or expresses a belief, as to what the "poor performance" resulted from, does not come near establishing that "poor performance" was being regarded simply as an aspect of unhelpful attitude.

	The Industrial Tribunal are of course the Tribunal of fact and we intervene only if they have made an error of law or if they have acted perversely in their decision upon the facts.  In our judgment no such complaint can legitimately be made about the conclusion reached by the majority in this case.

	Accordingly, this Appeal must be dismissed.