Appeal No. EAT/848/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 April 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS M L BOYLE

	MISS J W COLLERSON

MS P EDDELS	APPELLANT

ANNA FRENCH LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J HAGE
(REPRESENTATIVE)
Free Representation Unit
13 Grays Inn Square
London WC1R 5TP

For the Respondents	MR JOHN FRENCH
(MANAGING DIRECTOR)
Anna French Ltd
108 Shakespeare Road
London SE24 0QW

	JUDGE HULL QC:  This decision is one which has given us considerable difficulty and it is a decision of the majority, that is to say of Mrs Boyle and of me.  Miss Collerson has asked me to say that she wishes to dissent from our decision for reasons which, at her request, I will very shortly state, subject of course to any correction by her at the end of the majority's judgment.

	This was an application to the London South Industrial Tribunal by Ms Eddels who was first employed as a secretary by the Respondents in 1989.  After a time, in which there was no complaint whatever of her work as secretary, a place became vacant in the Sample Room as manager.  

	I should explain that the Respondents are designers and producers of fabrics and wallpapers; a very specialised task.  The actual work of making the paper and fabrics is done by contractors.  The Respondents are a small firm.  At the time they were in front of the Industrial Tribunal they had 35 employees, now they have 40 employees.  Something like a third of their work is for export and they have a large number of customers in the United Kingdom as well, something like 2,000.   As in all small firms, there must be a good deal of informality in the way they conduct themselves.

	In February 1991 this post became vacant.  As far as appears from the papers, Miss Eddels had not been employed in a managerial position before, though of course as one knows secretaries do frequently have a good deal of administrative responsibility and sometimes successfully make the transition from the secretarial job to managerial responsibilities; sometimes with triumphant success and progress accordingly.  That, no doubt, was what Ms Eddels wished to do.  It appears that she was warned before she took this step that if she was unsatisfactory in that new job as manager of the sample room then that would be the end of her employment because she would not be able to return to her former job; apparently because somebody else was being taken on to do that.  On that basis she accepted the employment.

	If I may pause there, clearly (unless a person is expressly put on probation) such a warning would not be sufficient if it later became necessary to dismiss the employee for incompetence.  Clearly an employee is in general entitled to more than that. 

	Towards the end of 1991 there was concern about her performance.  There was nothing that could possibly be called misconduct but there were various aspects of her performance which gave rise to her superiors in the Company feeling that she was not satisfactory in the job.  It was said, amongst other things, that she reacted very unfavourably to pressure; that she was forgetful; and that she was not efficient in administering her department, in mastering the procedures which were required, matters of that sort.  Accordingly, the decision was taken to dismiss her.  That happened eventually at the end of March and the beginning of April 1992.

	Ms Eddels made a complaint to the Industrial Tribunal that she had been unfairly dismissed and the Tribunal first heard the matter on 16 and 17 December 1992.  The hearing was unfortunately not as well organised as it should be.  On the very first day one of the members did not turn up.  I am not suggesting that it was that member's fault, but through some administrative slip or forgetfulness the member was not there until the time of the mid-day adjournment; and so the hearing started that afternoon.  On 17 December one of the members had an appointment at 2 pm and so what happened was that all the evidence was heard and the Tribunal then adjourned saying that it would wish to receive written submissions in place of closing speeches.  Complaint was made in this appeal of that, but it is now accepted that it is not a valid ground of appeal.  No point of law is involved.  All the evidence had in fact been heard and the Tribunal said that it wanted to receive written submissions, partly because of the time constraint.  That apparently is not an uncommon course with this Industrial Tribunal and the Chairman said that.

	Then something much more serious happened because, although the submissions were received, there was a move to Croydon and the matter of bringing back to the Chairman and members was greatly delayed, so that the Industrial Tribunal's decision was not in fact made and the meeting was not held until the end of August and the decision was finally promulgated on 6 September: that is to say something like 8 or 9 months after the hearing.

	Mr Hage, who appears instructed through the Free Representation Unit today, makes very forceful and well justified complaints about that delay.  Quite apart from the general principle that justice delayed is justice denied, such a delay in giving judgment is objectionable of itself, without any more being said about it.  He points out that recollections of exactly what was said, the demeanour of witnesses and so on would in those circumstances be greatly attenuated.  But he is obliged to acknowledge that there was no serious dispute about the evidence which was given to this Tribunal.  I have set out the essence of it already and in those circumstances, bearing in mind that the Chairman must be assumed to have taken notes and perhaps the members did too, the question for this Tribunal was a secondary question which arose after they had found the primary facts.  It was for the employers, as the Tribunal correctly directed themselves, to show what was the reason for the dismissal and then it was for the Tribunal to decide whether, having regard to all the circumstances of the case, the employers had acted fairly or unfairly in treating that as a ground for dismissal. Mr Hage then comes to his most powerful and important criticism.  He says (and he cites to us authorities which he has set out very helpfully in his Skeleton Argument), that in general, before an employee is dismissed on the grounds of lack of capability, she should be told what she is doing wrong; that she should be warned of the consequences if she cannot improve and does not improve; and that she should be given a reasonable opportunity to improve.

	Those are not commandments set in stone.  Those are the weighty pronouncements of this Tribunal and the Court of Appeal in dealing with the criteria of fairness.  They are based, of course, on Codes of Practice, to which every Industrial Tribunal must have regard; but they must in every case be interpreted in the light of all the circumstances of the case and it is impossible for any Court, however distinguished and authoritative, to gloss the statute in such a way that the Industrial Tribunal is deprived of its jurisdiction to decide, as the Tribunal of fact, on fairness or unfairness and reasonableness or unreasonableness; they are simply guidance to the Tribunals which they would do well always to bear in mind.  There may be particular circumstances which show that there has been a fair dismissal notwithstanding that the guidelines have not been meticulously followed.
	
	We now turn to the decision of the Industrial Tribunal which, as I say, itself founds the most serious criticisms which Mr Hage has made.  The Tribunal said, correctly, that at the material time Ms Eddels had been employed for about three years.  They set out the evidence which they had heard.  They set out the evidence of Mr Mitchell, Sales Director, in paragraph 2.  They set out the evidence of Mr Kramsky, the Financial Director, in paragraph 3.  Mr Kramsky had told the Tribunal that the Sample Room Manager had to have considerable administrative capabilities and must be able to keep calm.  He had been surprised when Mrs Eddels applied for the job.  He had warned her that if she did not measure up to the job she could be out of a job and there would be no job for her to go back to and she had said she would take this chance.  It was emphasised to her that she would be unable to return to her previous position.

	The Tribunal say:

		"It became apparent, towards the end of 1991 and the beginning of 1992, that the Applicant could not control the workload of the Sample Room and could not take pressure and panicked over the workload.  The Directors had finally come to the conclusion that the Applicant was not in the right job and she had been dismissed with three weeks' notice.

		Evidence was also given by Ms Szemirska who was the Administration Director.  When the Applicant had applied to become Sample Room Manager she had been warned that it was a risk and had also been warned that if she did not measure up there was nothing else she could do and would be facing dismissal.  She had frequently gone up to the Sample Room and had come to the conclusion that although the Applicant was desperately trying to achieve something she was in fact trying beyond her capabilities and consequently she concurred in the Applicant's dismissal."

They set out the evidence of the Applicant herself at paragraphs 5 - 7:

		"The Applicant gave evidence on her own behalf and said that she had become Manager of the Sample Room after being asked by Mr Mitchell if she was interested in the job.  She said that she had not been helped in any way by the Respondents in the management of the Sample Room and that she had never been criticised.  Her performance had never been discussed, nor had she ever received any warnings.  Her evidence was supported by that of two witnesses who had previously worked for the Respondents which we do not think that we need to repeat here.

		This is a summary of the evidence which we received.  As to the question of the reason for the dismissal, we accept the evidence given by the Respondents.  We are satisfied that the Respondents had reasonable grounds on which they could come to the conclusion that the Applicant was not capable of performing the work of Sample Room Manager.  We are also certain that when the Applicant was appointed to this job she was warned that if she did not measure up to the job the Respondents would be unable to find any position for her.  We therefore find that the Respondents established to us the reason for the dismissal, namely capability, and that this was caused by the Applicant's inability properly to measure up to the demands which were put upon her by the job of Sample Room Manager.

		As to the questions raised under Section 57(3) it seems to us that it would be possible to criticise the Respondents possibly for a failure to warn and advise the Applicant that she was not measuring up to her new responsibilities.  We are however satisfied that the Respondents offered the job to the Applicant on the basis that they would be unable to find any other job for her if she failed to measure up to the standards which they required and we are also satisfied that the Respondents did give the Applicant assistance and help in the running of the department.  We are not prepared in this instance to say that this dismissal is unfair simply because of some lack in a small company of any giving of written warnings to the Applicant.  We think that she was in fact advised and warned verbally throughout the time when she was managing the Sample Room as to what might happen if she was unable to measure up to her responsibilities and we are not prepared to criticise the Respondents for the way in which they carried out the dismissal.  Consequently, this application fails and is dismissed."

	As has been pointed out to us by Mr Hage, many months had elapsed since the hearing of the evidence but the Tribunal were clear that they accepted broadly, the evidence of the Respondents.  Our attention was invited by Mr French, the Managing Director, to what is said in their letter of 7 April when Ms Eddels was dismissed.  They say in that letter:

		"At the time of taking on that job we expressed our concern as whether you would be able to cope satisfactorily as it represented a complete change to what you had been used to.  

		There were several meetings in the interim months, some of which had to deal with uncomfortable situations between you and the staff at the time, and again we expressed our concern but we continued to support you.  These meetings were not documented other than the purely practical details of the queries raised.

		Whilst you have not done anything specifically wrong which would warrant a warning, our concern over your ability to manage the department has remained.  As I told you - you have a lot to offer in a job which would suit your capabilities - but the problem is that being a manager of our sample room is not the right job for you as it puts too much pressure on your weakest areas.  These are:

		1.	Bad memory - resulting in instructions having to be frequently repeated.

		2.	Inability to assess workload with a tendency to over-exaggerate without proper analysis.

		3.	Lack of commercial understanding of our business and inability to absorb information and explanations of its various aspects.

		4.	Difficulty in learning and absorbing new processes - e.g. word processor and label computer, which are there to make the job easier.

		5.	Lack of adaptability and tendency to be "fragile" and "stressful" when the department was busy.

		Over a period of time these factors have created a sense of "no confidence and frustration" in the minds of the directors and colleagues, who have to work with you on daily basis."

They say at the top of the next page:

		"We all recognize that you tried your best and you certainly should not look upon it as a "failure" but as a mutual misjudgment of your capabilities related to the particular demands of the job you undertook."

There was no suggestion against the good faith of these Respondents and the Tribunal broadly accepted their evidence.

	Mr French also asked us to look at the submission which they made to the Tribunal and he points out that they accurately said, and Mr Hage is of course unable to deny this, at page 2:

		"Miss Szemirska testified that she, during regular meetings she had with Ms Eddels and also during a number of meetings with Ms Eddels at which also our Managing Director John French was present, expressed her concern with Ms Eddels's performance and apparent inability to cope.  Miss Szemirska spoke of their supportive attitude to Ms Eddels at this time."

We, the majority, think it fair to suppose that the letter and the matters contained in the submission, were laid before this Tribunal in December 1992.  It was for the Tribunal to say, and not for us, whether in their view what that added up to was first of all that the employers had shown the reason, and secondly that they had acted reasonably and fairly in treating that as a reason for dismissal.

	We regard the decision of this Tribunal as seriously flawed.  We do not think that it is right for them to say, or to imply, as their decision seems to do, that the warning was clearly given at the outset and since this lady failed, that was sufficient to justify her dismissal.  I say they appear to do that but in fairness to the Tribunal I should point out that towards the end of their decision they do say:

		"We think that she was in fact advised and warned verbally throughout the time when she was managing the Sample Room."

In other words that it was not in fact in their minds that she was only warned at the outset.

	Nonetheless, the majority think that this being an experienced Tribunal, with two Industrial Members and accustomed no doubt to deciding issues of this sort, looking at the evidence which as we say was not basically in conflict (and where it was they accepted the evidence of the Respondents) were entitled to decide that the employers had acted fairly and reasonably in treating the inability of Ms Eddels (as they perceived it) as a reason for her dismissal. 
	
	The question of whether she could have been offered alternative employment was apparently not even canvassed at the hearing, although Ms Eddels was represented.  It may be that it was made plain to the Tribunal; we do not know; Mr French has told us today that in fact her post as a secretary had been taken by another and of course she could not be offered that post again without somebody being displaced.

	The majority have reached their conclusion bearing in mind those matters to which our attention has been invited.  We have come to the conclusion that we cannot, as a matter of law, say that this was a perverse decision or a decision which is bad on its face.  

	Miss Collerson has asked me to say that in her view this is a decision which is bad on its face.  In her view there is a plain assertion by the Tribunal that it is sufficient to warn an employee at the outset and then to say after a period of perhaps sixteen months in the post, - "I am sorry you have failed to give satisfaction to your colleagues, and we have decided to dismiss you".  If the majority thought that that was the correct view of this decision we should agree with Miss Collerson.  Miss Collerson asks me to say that she is of the opinion that the Tribunal's assertion is insupportable.  In those circumstances, whether or not the Tribunal had in fact formed a justifiable view that the employers had acted reasonably, they have not set out reasons on which such a view could be based and therefore the decision is, it really matters not what label one puts it, but it is bad on its face.  The facts found by the Tribunal and set out in their decision do not justify the view of the Tribunal that Ms Eddels was treated reasonably and fairly in dismissing her.  Therefore the matter should, as I understand it, go back for a further hearing either before this Tribunal or before another Tribunal to find all the facts, and to say whether, having regard to a correct view of the authorities, the decision to dismiss can be justified.

	The majority of us have formed the view that the Tribunal were evidently addressing their minds to the question of fairness, drawing on their experience, and that  they were entitled to reach the view which they did on the evidence which they heard.  Although certainly we think there is much to be criticised in the way this Tribunal arrived at its decision and in the decision itself, we nonetheless, as a matter of law, do not find it to be erroneous or perverse.  

	In those circumstances, by the majority, we dismiss this appeal.