Appeal No. EAT/1048/93
			EAT/1049/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR A C BLYGHTON

	MR R H PHIPPS

MINISTRY OF DEFENCE	APPELLANTS

MR D J WORROLLO	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

	

For the Appellants
MR ROBERT JAY
(Of Counsel)
Treasury Solicitor
Queen Annes Chambers
28 Broadway
London
SW1H 9JS

For the Respondent	IN PERSON

	JUDGE HULL QC:   Mr Worrollo was first employed by the Ministry of Defence on 10 December 1972 and he was finally dismissed in 1991.  He complained to the Industrial Tribunal, whose decision is before us, that he had been unfairly dismissed.

	The Ministry of Defence said that he was incompetent.  They gave particulars of that.  They said that he had shown inability in various directions, or inferior ability.  They referred to a large number of reports on him.  The Industrial Tribunal confined itself to the two years approximately before the dismissal and they considered the reports fair.  

	There is a large bundle which has been put in front of us consisting of the documents to which the Industrial Tribunal referred in the course of their decision.  They held that Mr Worrollo had indeed been unfairly dismissed, but that he contributed to his dismissal to the extent of 25%.

	We have considered this matter carefully with the aid of Counsel and Mr Worrollo himself, and we are going to refer to the decision in a little more detail.  But I would say that having heard evidence and submissions for five days the Industrial Tribunal produced a decision which was criticised both by Mr Jay for the Ministry and by Mr Worrollo himself.  It is said by both the Ministry and Mr Worrollo that there are inconsistencies in the decision itself.  To explain that, and to show why we are taking the course which we are, I must refer to it, but not of course in great detail.

	The Industrial Tribunal, which sat in June, July and September, at London South under the chairmanship of Mr Flint with his two Industrial Members, first of all set out the history. They dealt with matters with which we are not concerned today, concerning time, and then went into the evidence which they had heard on the subject of the dismissal; and they set out, among many other things, the documents which they had looked at, the reports over the two years.  They said that Mr Worrollo had been given trial periods; and they said that the reports contained a fair summary of the situation as seen from the Respondent's angle.  They said one of the reports was a fair summary of the situation as seen from the Respondent's angle and could not be criticised "as presenting matters so unfairly as to influence the Departmental Review Board", which was considering whether to dismiss or whether to take some other action in the case of Mr Worrollo.

	That is the first of a number of curious expressions in the reasons given by the Industrial Tribunal.  Do they mean here that the report which was presented by the Ministry to the Departmental Review Board was unfair, but not so unfair as to influence the Departmental Review Board, or do they mean that it was a perfectly fair document, or are they simply saying "well, it put matters from the point of view of the Ministry" and looked at from that point of view of course it was fair; one does not know.

	At any rate, the decision was to dismiss Mr Worrollo, and they record that one of the witnesses whose evidence they accepted as being genuine and truthful said that there appeared to be, in Mr Worrollo's 18 1/2 years' service, only four years which could be characterised as being satisfactory.  His performance during the other years had been less than satisfactory.  Mr Worrollo was employed as a Management Accountant.  He has a degree, he tells us, in Physics and he also has his accountancy qualification and he was an Executive Officer with considerable responsibilities.  

	They set out how the conclusion of the Ministry, that there was inefficiency, was formed and then the Tribunal go on to make their findings and it is really only these that we are concerned with.  They say "We heard evidence at length from all the protagonists in this affair" [and they set out the names of all of them] .... and we also heard evidence from the Applicant [that is Mr Worrollo of course].  These included the witnesses who had reported on him and Mr Worrollo cross-examined them; and he also put forward suggestions, he tells us, to the effect that his performance had truly been satisfactory and been so reported on by a number of other Officers as well.

	What the Tribunal say then is: 

		"We did not find this an easy case to decide.  We are satisfied that all those persons who gave evidence before us honestly and fairly reported on the Applicant's position as they saw it". 

	That was an important finding.  All those witnesses they had heard; they accepted their integrity.  That is of importance because Mr Worrollo, without actually alleging a conspiracy, has said that there was malice and unfairness in reporting on him and he referred to at least two scandals, rightly called public scandals, in which the Ministry of Defence has been involved in the past and suggested that some of these people were involved in those.  It is quite plain to us that it was being suggested, or at any rate implied, that there was bad faith on the part of these witnesses, and that was being rejected by the Tribunal.

	It is important to remember exactly what the Tribunal had to consider on this complaint.  As Mr Jay quite rightly said, they had to consider the matter under Section 57, which provides:

		"(1)  In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show - 

			(a)  what was the reason (or, if there was more than one, the principal reason) for the dismissal, and 

			(b)  that it was a reason falling within subsection (2)..." 

and subsection (2)(a) specifies, as one of the reasons which can justify dismissal, one that is related to the capability of the employee and it goes on in subsection (3):

		"Where the employer has fulfilled the requirements of subsection (1), then, subject to .... [matters which do not concern us] the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances ...] the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case". 

	Where an employer is considering dismissing an employee for reasons of incompetence,  it is well settled that of course no employer is obliged to keep on, indefinitely, an employee who is incapable, but he must act fairly; in concluding that the employee is incapable of doing his work and in treating that as a reason justifying dismissal.  And the ingredients are these.  He must act fairly throughout.  He must give, in the ordinary case, a warning.  Of course, there may be cases in which warnings are entirely out of place.  But generally he must clearly warn the employee that his conduct is under scrutiny and he must give him a fair trial after that warning to see whether, having been warned, he can pull himself together   or do whatever is required to make himself capable of carrying out his task.  The employer should not finally conclude that the employee is incapable and act to dismiss him until he has taken those steps.  Those are the ordinary ingredients of fairness.  In any particular case of course the Tribunal must direct themselves to the words of the statute.  Here of course the employers were saying that they had warned Mr Worrollo and that they had given him fair opportunities, in the two years which were under review by the Industrial Tribunal, to put matters right.  So the Tribunal, having said that they were satisfied that all the witnesses who had given evidence for the Ministry had honestly and had fairly reported on the Applicant's position, went on to say this:

		"We accept also that they honestly and on reasonable grounds came to the conclusion that the Applicant was inefficient and consequently find that the Respondents established to us the reason which they put forward for dismissal, namely incapability based on unsatisfactory work performance and that at the time when they took the decision to dismiss they had reasonable grounds supported by proper investigations for coming to this conclusion"

	That is really, as Mr Jay submits to us, dealing with all the aspects that I have referred to.  The employers did not form this conclusion precipitately.  They had known Mr Worrollo for more than 18 years.  They found him over that period, they said, inefficient for most of the time and they had spent two years in which he had been closely monitored and they had reached the conclusion after that, on the basis of reports which were laid before the Industrial Tribunal, that he was indeed inefficient and they had reached that conclusion fairly and properly.  

	The Industrial Tribunal did not have to say that they agreed with that conclusion, but they found that it was an honest and reasonable conclusion.  If the Tribunal had thought that the "trial" was not fair, that the reports were biased or that there was anything of that sort, of course they could not make these findings which they did make.  At that point it appeared, subject to any further details they thought it right to go into, that a conclusion in favour of the Ministry of Defence would be inevitable.  But they went on to make some remarks which are criticised both by Mr Jay and by Mr Worrollo himself, as inconsistent with what had passed before.  "Generally" they say, "this was one of those cases where we were not happy with the way in which the Respondents had acted".  What did they mean by "one of those cases?"  We felt to a large extent that the Applicant particularly towards the end of his career and when his question of dismissal for inefficiency was under consideration - and it must be remembered that the question of dismissal for inefficiency had first been raised at the end of 1989 - had never been given a chance to settle down at any one particular job and been given an opportunity to demonstrate that given some support and encouragement he might without in any way being a candidate for promotion do a useful job as an Executive Officer for the Respondents.  

	First of all, this is not a finding which is said to be based on any facts.  It is a "feeling" which they had, "one of those cases", they said.  It is a rather strange way of putting it.  They had heard all about these two years since 1989, in which Mr Worrollo had apparently been employed in two different jobs and there had been regular reporting on him.  How, in the light of that "feeling" which they had, could they conclude that the decision on incapacity had been reached on reasonable grounds supported by proper investigations?  It appears quite inconsistent with what they had said before.  They go on with other criticisms: "we think to a certain extent the attitude of those reporting on him was coloured by the fact that here was someone with an accountancy qualification, who in the course of nearly 18 years working for the Respondents had not managed to achieve the sort of promotion or level which would be expected after 18 years.... ."  

	One says, why on earth should they not have their understanding coloured by the fact that here they are dealing with a professional man who has not achieved the promise which they had hoped for? - but there it is.  "His continuing presence in the department was seen as something of a nuisance to all concerned."  But if they were really regarding him as a nuisance, that again is not consistent with what is being said.

	"We also consider that once the machinery for dismissing him for inefficiency had been started, it was intended that this machinery should roll on until the desired result had been achieved."  That is saying in terms, it seems to us, that this entire performance from 1989 onwards was not conducted in good faith; it was intended that it should lead, not to the chance for Mr Worrollo to show that he could improve and could do a job satisfactorily, but to the desired result of his dismissal.  He was a nuisance.  They hasten to add, "we do not here accept that there was a conspiracy in the formal sense."  Do they mean that there was an informal conspiracy to dispense with the services of the Applicant, as was suggested by him?  Mr Worrollo says that that is wrong, he was not suggesting that there was a conspiracy.  "But there was simply some sort of unconscious assumption that the Department would be better off without him and that the procedure for effecting this should be put in motion and should run its desired course."  That does appear to be an extraordinary statement.  By definition, what one is not conscious of cannot be something which one can deal with.  If they were saying there was a conscious resolution that they wanted to get rid of him, that would be one thing; but to say that it was unconscious?  By definition they do not and cannot identify anybody as the subject of this criticism.  How could anybody who was unconscious of such a thing react to it?  It seems completely inconsistent with a judicial approach to the question which they were considering, and one wonders on what evidence such a conclusion could be based and who was supposed to have this unconscious feeling.  

	It sounds more like an psycho-analysis than a judicial enquiry.  They say that there were two procedural defects which were described and Miss Hall, Counsel for the Ministry before the Industrial Tribunal, in her submission said that these two procedural defects had no adverse effect on the Applicant.  "This may be so if one looks at these two procedural defects in isolation".  Pausing there, procedural defects do not necessarily render a dismissal unfair.  They may very well do so.  It is not the duty of the Tribunal to decide whether they may have had no effect if looked at in isolation; it is their duty to decide whether those procedural defects mean that there was not a fair conclusion about incompetence.  

	"Our general comment is that the case is procedurally defective in a large number of ways which we have attempted to outline in this decision and that the Applicant instead of being treated as somebody who could be pushed around from one post to another accumulating bad points for inefficiency on the way, ought to have been given one last chance to demonstrate by being settled into a job and given a stated period of time of some length during which he was to perform it that he could without necessarily being a candidate for promotion demonstrate reasonably efficiency as an EO.  The way in which the Respondents handled this matter was in our view generally unsatisfactory and leads to a conclusion that although we find that the reason for the dismissal is established, that overall the matter was not handled in a fair manner".  

	Mr Jay says, and we think there is much justice in it, that here the Tribunal are saying how they would have dealt with it.  They have feelings about this.  They were left with the view that it was generally unsatisfactory and that there should have been one more chance for Mr Worrollo.  If there should have been one more chance for Mr Worrollo it means that their conclusions which they stated earlier, that the Respondent had established that the Applicant was inefficient and that that was based on reasonable grounds supported by proper investigations, is simply wrong.  It does seem therefore that, as both Counsel and Mr Worrollo said to us, this is a decision which contains internal inconsistencies and possibly other criticisms can be made of it as well.

	In those circumstances, we have had to ask ourselves what the proper course is.  These inconsistencies go to the heart of the matter, whether Mr Worrollo was, or was not, unfairly dismissed.  Mr Jay has invited us to take the undoubted and firm findings with which they start paragraph 11 and to say that these inconsistencies ought to be put on one side.  Those undoubted findings, firm findings of fact in quite clear language, should persuade us to say that the only conclusion is that Mr Worrollo was, indeed, fairly dismissed.  But we cannot do so.  We think that, for the reasons pointed out to us by Mr Jay and by Mr Worrollo, this is a decision which is flawed fundamentally.  

	It is quite clear that the Industrial Tribunal were not directing their minds clearly and consistently to what they had to decide, albeit that they had spent five days most patiently investigating the issues; and that the decision fails to do what a decision is required to do, which is to show quite clearly to each of the parties why they have won or why they have lost as the case may be.  This decision is inconsistent in the legal sense and therefore cannot stand.  We are quite unable to substitute, on the basis of certain findings in the decision, a different conclusion on the basis that it is inevitable or the only conclusion which the Tribunal could have reached, and therefore this case must go back to be heard again by a differently constituted Tribunal which will consider all the evidence which the parties wish to lay before it.  In that way the appeal is allowed.