Appeal No. EAT/978/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4th February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR P DAWSON OBE

	DR D GRIEVES CBE

FIBRETECH (GROUP) LTD	APPELLANTS

MR M INGRAM	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR J H CHAPMAN
(Director)
Fibretech (Group) Ltd
Unit V
Willments Industrial Estate
Hazel Road
Woolston
Southampton
SO2 7HS

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from the decision of the Industrial Tribunal which sat at Southampton on the 28th September 1993 last year.

	For reasons stated in the decision notified to the parties on the 21st October 1993 the Tribunal unanimously held that Mr Ingram, the Applicant, had been unfairly dismissed by the Respondent, Fibretech (Group) Ltd.  The Tribunal decided that Mr Ingram was dismissed from his employment terminating on the 20th February 1992 and that the reason for dismissal was capability, within the meaning of Section 57 of the Employment Protection (Consolidation) Act 1978.  The dismissal was, in the circumstances, unfair but Mr Ingram was guilty of misconduct contributing to his dismissal.  To reflect his share of responsibility the compensation awarded was reduced by 50%.

	Mr Chapman, who is the Chairman and Managing Director of Fibretech, was dissatisfied with the decision.  He initially sought a review of the decision from the Industrial Tribunal.  The Industrial Tribunal decided on the 17th November 1993 that the application for Review should be refused, because it had no reasonable prospect of success.  At the same time Mr Chapman, on behalf of Fibretech. pursued an appeal to this Tribunal by Notice of Appeal dated 30th November 1993.  As Mr Chapman appreciates the Employment Appeal Tribunal can only entertain appeals from a decision of the Industrial Tribunal if there is an error of law.  There is no appeal against findings of fact.  If there is no arguable point of law the Tribunal can, on a preliminary hearing such as this, prevent the appeal from being pursued to a full hearing.

	The background to this dispute is that Mr Ingram presented a complaint to the Industrial Tribunal of unfair dismissal.  He had been employed by Fibretech from August 1982 down to 20th November 1992.  He had been employed as a Fibreglass laminator and mould maker.  He complained in the Notice of Application that he had been dismissed unfairly. He set out the details of the incidents relevant to his claim.  The claim was disputed by Fibretech, who stated in the Notice of Appearance that Mr Ingram had been guilty of continued failure to undertake his duties to an acceptable standard, in spite of numerous warnings concerning his competence.

	The matter came before a Tribunal.  Mr Ingram presented his case "in person" and a solicitor handled the case for Fibretech.  The Tribunal heard a great deal of evidence from Mr Chapman, largely in a written form with an annexed bundle of documents.  The Tribunal were, therefore, given a considerable amount of detail about the incidents which led up to the dismissal.

	It is unnecessary to go through the decision in detail.  The crucial point is, that in paragraph 14 of the decision, the Tribunal accepted Fibretech's argument that they had a reason for dismissing Mr Ingram.  The reason was capability.  This was a reason that was potentially fair.  The part of the decision which deals with the unfair aspect of the dismissal makes it clear that they were dealing with the case of what, in the view of the Tribunal, was procedural unfairness.  

	There was a conflict of evidence between the parties as to whether or not adequate warnings had been given before Mr Ingram was dismissed.  Fibretech's evidence disclosed that warnings directed to the quality of work would be given, or intended to be given, in 1991 and early 1992.  There were discussions between the parties about Mr Ingram's capabilities.  On the other hand, evidence was given by Mr Ingram in which he disputed that he had been given clear warnings by Mr Chapman. 

	The Tribunal observed that it was incumbent on an employer, intending to give a warning as to the employee's future, that he should do so in clear terms.  The Tribunal's conclusion on this conflict of evidence was that it was not satisfied that Fibretech had given sufficiently clear warnings to Mr Ingram before dismissing him.  For that reason alone the dismissal was unfair procedurally.

	Having found that the Tribunal went on to consider Mr Ingram's conduct and whether it had contributed to his dismissal.  On that it assessed his contribution to his own dismissal as 50%.

	Mr Chapman wishes to appeal against that finding of unfair dismissal.  His initial difficulty is that a finding that a dismissal was procedurally unfair, because there had not been adequate warnings, is a finding of fact.  The Tribunal, having heard the evidence, takes a view of the situation from the standpoint of the reasonable employer. It asks itself whether a reasonable employer's response to the situation would have been dismissal without further warnings or whether clearer and further warnings would have been given before the ultimate step of dismissal.  Despite the difficulty of appealing what is a question of fact Mr Chapman developed before us, very clearly and moderately, a number of submissions.  He submitted that Fibretech had behaved as a reasonable employer and that a reasonable employer would have dismissed in these circumstances, taking into account, in particular, three aspects of the case which Mr Chapman complained had not been taken into account by the Tribunal.  First, there was the history of the relationship between Fibretech and Mr Ingram, leading up to the final incident which led to dismissal.  The second factor related to the size of the business in which some 15 employees were engaged, and there was an annual turnover of about 1/2 a million pounds.  The third related to the severity of the last incident, which was so serious that no warning was actually appropriate to deal with it.

	These matters were also relied upon in support of an argument that the 50% reduction for contributory fault was insufficient in the circumstances.  Again there are difficulties in that point.  The assessment of contributory fault is a matter of fact on which there is no appeal, unless it can be shown that the Tribunal misdirected itself as to the statutory provisions or misapplied those provisions to the facts of the case.

	In addition to these points Mr Chapman made the general complaint that the Tribunal did not understand the complexities of the case.  He complained, in particular, that attempts had been made to introduce evidence at the hearing which was not allowed; evidence relating to malicious motives on the part of Mr Ingram.  He also commented that it appeared from a question asked by a Member of the Tribunal that there had not been a full appreciation by the Tribunal of the nature of Fibretech's business and the seriousness of Mr Ingram's shortcomings in that business.

	We have looked at all the matters that Mr Chapman has raised.  We appreciate that he may feel that he ought to have succeeded before the Tribunal.  There is some ground for him feeling that he might have succeeded because, he did in fact succeed on one important point, namely that there was a valid reason for dismissal.  The only reason that Fibretech lost the case was because there were, in the views of the Tribunal, shortcomings in the way in which the matter was handled procedurally.

	Despite the force of the points that Mr Chapman has made, we are unable to detect in any of these arguments a point of law. There is no point in the matter proceeding to a full hearing.  It is doomed to fail unless a point of law can be identified.  We are unable to identify one. This appeal must be dismissed.