Appeal No.	 EAT/969/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 March 1997

Before
THE HONOURABLE MR JUSTICE KEENE
MR J D DALY
MISS S M WILSON

MR M HILL	APPELLANT

BRITISH TELECOMMUNICATIONS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR GAVIN MILLER
(Solicitor)
Messrs Russell Jones & Walker
Solicitors
Swinton House
324 Gray's Inn Road
London
WC1X 8DH	
For the Respondents	MR PHILIP THORNTON
(of Counsel)
The Solicitor
British Telecommunications Plc
81 Newgate Street
London
EC1 7AJ	

	MR JUSTICE KEENE:   The appellant in this case was an employee of British Telecommunications Plc, the respondent. He began employment with the respondent in 1963 as a clerical assistant and in 1977 joined the sales team. He was dismissed by letter dated 31st March 1995 by Mr Peter Chapman who held a position described as Line of Business Sales Manager. Mr Hill was given 12 weeks notice. The reason for dismissal was poor performance. An Industrial Tribunal sitting at Newcastle-upon-Tyne decided on 18th July 1996 that he had been fairly dismissed and Mr Hill now appeals against that decision.

	What had happened was that the respondent had carried out a substantial reorganisation of its business as from 1st July 1994, so that someone in the appellant’s position as an accounts manager in the sales team now found himself dealing with customers not on a geographical basis but in relation to specific types of business. The appellant’s performance rating even before this reorganisation required improvement, but the problems increased after it. His immediate superior was a Mr Brassington. He was dissatisfied with Mr Hill’s failure to visit his new customers sufficiently often. The tribunal found that the appellant was visiting them four or five times a month rather than four or five times a week. As a result the appellant was placed on daily reporting on 22nd August 1994 and his performance was carefully monitored thereafter.

	At an interview with Mr Brassington on 11th January 1995, according to the tribunal’s findings, weaknesses in the appellant’s performance were identified to him and he was expected to improve upon these during a one month monitoring period, during which he was to continue daily reporting. The tribunal found that no improvement was observed during the monitoring period and that Mr Brassington then took the next stage under what was known as the poor performance procedure or PPP of the respondent. This was to give the appellant a formal warning which he did on 9th February 1995 during an interview at which Mr Brassington stated that the appellant’s objectives had not been met, and that he had failed to demonstrate a significant improvement. He was advised that if his performance did not significantly improve by the end of a further monitoring period, which in the event ended on 10th March 1995, he would be liable to dismissal or downgrading. The tribunal below found that at the end of the monitoring period the appellant’s second line manager, Mr Chapman, informed him that as he had failed to achieve the required improvement consideration was being given to terminating his employment. The appellant was invited to attend a meeting with Mr Chapman to argue why his employment should not be terminated and that meeting took place on 24th March 1995. After considering the matters raised Mr Chapman decided to dismiss the appellant on the grounds of capability, and as we have already indicated, this was notified to him by a letter dated 31st March 1995. That letter specified some five aspects of his poor performance. 

	The appellant’s dismissal was subsequently confirmed by his third line manager, Mr Cross, after an appeal hearing and he then exercised his right to an independent review under the respondent’s grievance procedure. That was dealt with by a Mr Scott, who was the personnel director of the respondent. He considered the appellant’s case, but did not feel that there were any facts or information not already made available to the management, and he concluded that there were no reasons to review the decision which had already been made.

	Before the Industrial Tribunal the appellant argued that there had been both substantive and procedural unfairness. The Industrial Tribunal clearly and in detail rejected the allegation of substantive unfairness, and that conclusion is not challenged in this appeal. So far as procedural unfairness is concerned, Counsel for Mr Hill at the tribunal hearing criticised the interview with Mr Chapman prior to dismissal as well as the appeal hearing before Mr Cross, and also criticised the final grievance procedure adopted by Mr Scott. As we shall make clear in due course, that breadth of criticism is not maintained at the current appeal stage before us.

	Nonetheless, before the tribunal below it was argued that the appellant had not had any opportunity to address the matters held against him, and that he was unaware of the matters which had been put by the respondent to Mr Cross at the appeal stage and that there was therefore a fundamental flaw in the appeal procedure which was not capable of being remedied. 

	The respondent contended that there had been no procedural unfairness. Its representative contended that throughout the review procedure the appellant had been advised by his trade union. The last appeal to Mr Scott had been a written exercise and he had only received submissions. It was, it was said, never intended that he should be hearing oral evidence. It was also submitted on behalf of the respondent at that stage that Mr Hill had had ample information as to his shortcomings and how to remedy them and that he had had a full hearing before Mr Chapman. In addition it was said that Mr Cross would have heard any representations that he wished to make. The company’s representative then distinguished two cases cited by Mr Hill’s representative on procedural unfairness.

	The tribunal in its decision set out a number of conclusions which related essentially to the issue of substantive unfairness indicating that it did not accept the arguments advanced on behalf of Mr Hill. In so far the tribunal dealt with procedural unfairness it said this at paragraph 10(l):

“(l)	We find that the procedure followed throughout the monitoring period and the PPP by the respondent was fair and Mr Hill accepted all stages of the procedures and accepted all the targets that were imposed upon him. At no time did he suggest that any requirements of the respondent were unreasonable or unrealistic.”

Later in the penultimate paragraph of its decision, paragraph 11, it stated:

“11.  We find that the respondent perceived weakness in the performance of the applicant which it attempted to have redressed. We find that it was reasonable in both the manner and method by which it attempted to achieve improvements and that notwithstanding the not inconsiderable steps which it took to do so the applicant singularly failed to achieve a reasonable standard of performance. We find the conduct of the respondent to have been reasonable in relation to the applicant throughout the entire period from July 1994 up to the date of his dismissal.”

	This appeal is based upon two main grounds: first, that in deciding whether the employer’s procedures were fair in respect of the first internal appeal, that is to say the one heard by Mr Cross, the Industrial Tribunal failed to take into account certain alleged defects in those procedures. Secondly, if it did take those matters into account, its decision was perverse. 

	It is perhaps helpful at this stage just to summarise briefly the stages through which the issue of the appellant’s dismissal went. There was first the interview conducted by Mr Chapman on 24th March 1995, at which the appellant was represented by a union representative, and which led to the decision to dismiss. Then there was an internal appeal to Mr Cross. Finally there was a review by Mr Scott.

	As Mr Miller has made very clear to us today, it is only the second of those three stages, the appeal to Mr Cross, which is criticised at this present hearing before us.

	In the course of argument Mr Miller developed a point which logically needs to be dealt with first. He submitted that the tribunal failed to deal with the issue of procedural unfairness, at least in respect of the appeal to Mr Cross. The contention is that in paragraph 10(l) of the decision, quoted earlier, the tribunal was only dealing with procedure up to 10th March 1995. 

	There is no doubt that the statement made by the tribunal that “the procedure followed throughout the monitoring period and the PPP by the respondent was fair” is very brief. It cannot however be properly understood without referring to the poor performance procedure document itself. That is a lengthy document which sets out the procedures to be followed within the respondent’s organisation whenever there are problems concerning the performance or the attendance of an employee. It deals with steps to be taken by management before any initial warning, those steps including monitoring periods. It then covers the initial warning and a suitable monitoring period after that; then a formal warning of possible downgrading or termination of employment plus a further monitoring period. Next, decisions to downgrade or dismiss. Then appeals to the third line manager, such as Mr Cross in the present case, and finally a special review procedure in certain exceptional cases, that review procedure being what gave rise in the present case to Mr Scott’s involvement.

	What is clear to us is that the poor performance procedure does embrace not merely the warning stages prior to dismissal, but also the appeal and review stages after dismissal. Consequently, when the tribunal said that it found the procedure followed “throughout the monitoring period and the PPP” to have been fair, it was determining that there had not been procedural unfairness at any stage including that of the appeal to Mr Cross. That was the meaning of the reference to the PPP, and that is confirmed by the fact that the tribunal adds the reference to the PPP to the earlier words “the monitoring period”. The significance of that is this: the monitoring period ended on 10th March 1995; the additional words “and the PPP” seem intended to add something, and in particular to cover especially the procedure after that date. Although therefore that reference in the tribunal’s decision was brief, we do not accept that it failed to determine the issue of procedural unfairness either generally or in relation to the appeal to Mr Scott.

	As for the brevity of its conclusion on that aspect it must be born in mind that it had already set out earlier in its decision the respective arguments of the two sides. It clearly preferred those advanced by the respondent on procedural unfairness, including the appeal to Mr Cross and the review by Mr Scott.

	We return then to the two main arguments advanced before us on behalf of the appellant.

	First, did the tribunal fail to take into account the considerations and arguments advanced by the appellant about the appeal to Mr Cross? We find it quite impossible to say that that was the situation, when the tribunal had reminded itself of those arguments in its decision at paragraph 8. Indeed at paragraph 9 it sets out the opposing contentions advanced on behalf of the respondent. Mr Miller’s submission really comes down to asserting that the tribunal must have ignored those matters, given the conclusion which it reached on procedural unfairness, but that only amounts to an argument of perversity which is of course the second string to his bow. That being so, it is to that that the bulk of his submissions properly relates.

	We turn therefore to that main plank of this appeal. It goes without saying that it is always a difficult task to establish that a tribunal’s decision was one to which no reasonable industrial tribunal properly directing itself could have come. Especially must that be the case where, as on this appeal, there has been no order for the Chairman’s Notes of Evidence. We are left therefore entirely without information as to the oral evidence given before the tribunal on what was a lengthy hearing.

	However, it is contended on behalf of the appellant that the procedures adopted by Mr Cross in conducting the appeal to him were so unfair that any reasonable tribunal must have concluded that the dismissal of Mr Hill was procedurally unfair. 

	There is no doubt that from the dismissal letter of 31st March 1995 Mr Hill knew what the criticisms of his performance were. Indeed, he had had an earlier letter dated 13th March 1995 from Mr Chapman, making essentially the same five points with certain additional details. And those matters had then been discussed at the meeting which he had had with Mr Chapman on 24th March 1995 before the letter of dismissal. We have been shown the minutes of that meeting and they revealed that, during the course of it, Mr Chapman had expanded orally on some of the written points. The tribunal below also had access to those minutes.

	There then took place on 12th May 1995 the hearing by Mr Cross as a result of the appellant’s appeal. It took the form of Mr Cross listening to the case presented on behalf of the appellant by his representative and by Mr Hill himself. It seems to have been, from the note of it, a lengthy and detailed presentation. At the end of it Mr Cross said that he would consider the points raised and would conduct further investigations as appropriate. He would aim to respond within the next week.

	Conducting such investigations at this appeal stage was in accordance with the procedure laid down in the PPP, paragraph 4.9 of which describes the arrangements for such appeals as follows:

“The individual is entitled to appeal to the third Line Manager against the decision to downgrade or terminate employment. The appeal may be made orally or in writing. A “friend” can assist the individual in the preparation and presentation of an appeal. In dealing with an appeal the third line manager should consider all the information assembled at the point where the second line manager made his/her decision and any points raised on appeal, make further enquiries as necessary and then judge what decision is appropriate.”

	What happened here was that Mr Cross investigated further by speaking to Mr Chapman and to Mr Brassington about the points raised by the appellant. In the light of their comments he made his decision to reject the appeal. What is now contended is that some of the comments made raised new matters which should have been put to the appellant before Mr Cross made his decision. It is said that the appeal procedure was unfair because those points were not so put. It also seems to be argued that the appellant was entitled to the last word.

	A number of decisions of this appeal tribunal and of the Court of Appeal have made it clear that, while an internal appeal of this kind must be conducted fairly, that requirement does not import into industrial relations all the panoply of the rules of natural justice in the way in which they would be applied by a court of law. As Lord Denning said in Ward v Bradford Corporation [1971] Vol. 70 LGR 27 at page 35:

“We must not force these disciplinary bodies to become trammelled in the nets of legal procedure. So long as they act fairly and justly, their decision should be supported.”

That was cited and followed by this Employment Appeal Tribunal in the case of Rowe v Radio Rentals Ltd [1982] IRLR 177 where at page 179, paragraph 14, it was made clear that what was required was that the employee should have had the opportunity to deal with the case against him and should have been heard on it.

	In a case such as the present the person hearing the appeal must hear the appellant’s side of the case, and will no doubt wish to hear also the management’s side of the case. How he does that is largely a matter for him, so long as the employee knows the case which he has to meet and is given a fair opportunity to meet it. Had we been sitting as the tribunal of first instance, we doubt whether we would have found any unfairness in the procedure adopted by Mr Cross. The appellant knew the complaints about his performance well in advance of the appeal hearing and had ample opportunity to deal with them. He was not given a further opportunity to deal with the management’s response. But that response was itself concerned with the same principal complaints about Mr Hill’s performance. The mere fact that on a matter of detail something was said which had not been said previously did not automatically require a further hearing with Mr Hill. Mr Cross had heard both sides and his task was then to form his own view. 

	But we are not sitting at first instance. We have to consider whether the tribunal’s decision was perverse because it was outside the range of permissible decisions that such a tribunal could reach. In considering that, we bear in mind that even if there is a defect in the appeal procedure it will not necessarily render the dismissal procedurally unfair. See The Post Office v Marney [1990] IRLR 170 and Westminster City Council v Cabaj [1996] IRLR 399.

	Such a defect in the appeal procedure may render the dismissal procedurally unfair, but whether it does or not is a question for the tribunal to decide, and it is to be decided by looking at what the employer did in total and not simply at the appeal process or at one stage of it in isolation. In that context it is important that no criticism is advanced in this appeal of the procedure adopted by the employer at the stage immediately prior to dismissal when Mr Chapman conducted an interview with Mr Hill. Nor is there is any criticism now of the review stage by Mr Scott. Thus the first and third stages, as we have described them, are conceded to have been fair. All of those are matters to which the tribunal was entitled to have regard and to which, in our judgment, it did have regard.

	The review stage is to our mind of significance. If there were any force in the point advanced about new matters having been raised at the second stage with Mr Cross by Mr Chapman and Mr Brassington, so that the appellant should have had the opportunity of dealing with them, it would in any event be answered by the further review which took place. It is true that that was a review rather than a rehearing, but it was nonetheless intended as the tribunal said to deal with any new facts and matters. Had Mr Hill had any new points to raise in response to those which had been made by Mr Chapman and Mr Brassington to Mr Cross, he could have done so at that final stage. That has been conceded today expressly by Mr Miller on his behalf. 

	But it is said that at that review representations could only be made in writing and that there was no oral hearing conducted. We do not see that as a valid argument in the circumstances of this case. It presented a further opportunity for the appellant to raise any comments which he wished to raise and to present any arguments which he had in respect of new material or new points which had been put forward by Mr Chapman or Mr Brassington. The fact that it was to be done by way of written representations does not mean that that opportunity could not be adequately exercised by the appellant.

	On the face of it, therefore, the review by Mr Scott which is not now criticised could have cured any defects at the earlier stage of the appeal to Mr Cross. Whether it did so or not would have been a matter for the Industrial Tribunal to judge. Certainly in those circumstances we find it impossible to say that the tribunal below was acting perversely in concluding that the respondent’s procedures were fair. It knew about the interview by Mr Chapman. It knew about the review by Mr Scott. It heard detailed evidence about what happened procedurally, including oral evidence from Mr Cross of which we have not had the benefit. On the evidence which we have seen, it was open to the Industrial Tribunal to arrive at the conclusion to which we have just referred. We can therefore see no force in this final point advanced on behalf of the appellant.

	It follows that this appeal must be dismissed.