Pickup v Sension Ltd [1992] UKEAT 169_91_1603

EAT
Pickup v Sension Ltd
[1992] UKEAT 169_91_1603 · 1992-03-16
MR JUSTICE WOOD (PRESIDENT): Mr Pickup appears in person before us to appeal against a Decision of an Industrial Tribunal sitting at Manchester under the Chairmanship of Mr Gould, who after a hearing of four days in January 1991 dismissed his application that he had been unfairly dismissed by his employers Sension Limited. The reason for his dismissal was said to be either redundancy or some other substantial reason. The Applicant was unrepresented, he gave evidence on his own behalf, the Company were represented by Counsel.This is a small Company employing some 70 people. They are specialists in designing electronic systems. The Applicant was dismissed finally in February 1989 after notice given to him in November 1988.The Managing Director was Mr Dyke; he and his wife were the sole directors and shareholders. Mr Dyke is a professional electrical engineer by training and initially until the arrival of Mr Pickup in 1979 Mrs Dyke was dealing with the Company's accounting systems.The Applicant, originally on a temporary basis, was the Administration Manager, but later he took on the preparation of the management accounts and dealt also with credit control. He is now some 59 years of age and by 1986 in addition to his other accounting duties he had taken over responsibility for the manufacturing unit and carried out those duties for a period of some one and a half to two years.It was in 1986 that the start of the problems, so far as Mr Pickup was concerned, began. They began, if "problems" is the right word to use, by the arrival of a Mr Joels, he was appointed Operations Director. He was a statistician and a business planner; he had had experience with one of the substantial companies as a Chief Planning Analyst in the Business Planning Department and the Tribunal took the view that Mr Joels was well suited to the task which Mr Dyke had in mind. He had the necessary expertise and qualifications to carry out those duties, indeed he was still employed by the Company at the time of the hearing.The problems between Mr Joels and the Applicant were that Mr Joels although at first favourably impressed by Mr Pickup, he began after a while to be critical of the arrangements of the accounts, not only the Accounts Department but of the management of accounts. This view was confirmed by a Mr Sherman, who was brought in after the Applicant's dismissal as a Financial Controller. Of course, the comment could be made, "that he would be critical wouldn't he?" but the Tribunal took all that aspect into account and they found that Mr Sherman's summary of the situation in regards to methods used by the Applicant was that in times of high profits that system worked satisfactorily, even though the business is operating efficiently, but when there is more competition that situation requires more accounting controls.Mr Joels had earlier suggested a computer to Mr Pickup but Mr Pickup was slow to accept it; he did eventually but to begin with he was adamant that he did not want it. Mr Joels expressed his views and doubts about the Applicant's abilities to Mr Dyke. Mr Dyke was very attached to the Applicant. He thought him conscientious and did not want to upset him. There were many matters things which the Applicant had done well, but Mr Dyke did not feel that accountancy was one of them.In 1987 the Company applied to the Department of Trade and Industry for further funding and as a result the Industrial Design Council asked for a report on the financial straits of the Company. An investigation was carried out by AMS Associates.On the evidence before them the Tribunal thought that this was a large company experienced in these matters who charged a very large fee, in fact the Applicant subsequently discovered, that it was not a large company and the fee was not nearly as large as it was thought to be. However, the report was looked at by the Tribunal whereas Mr Pickup said it should not be looked at because, by a letter of the 27th June 1988, copies of the draft report were withdrawn and official copies destroyed; that final report was obviously to be re-written on fresh terms of reference. So it is said that this report should not have been looked at. But this report was the report that was affecting, in part, the mind of Mr Dyke. He had the view of Mr Joels, Mr Sherman came afterwards but that supported Mr Joels view. Mr Dyke was reluctant, he was fond of the Applicant but this other report from AMS indicated that things were not as satisfactory as they might have been and we can see no reason why the Tribunal should not have taken it into account, as indeed Mr Dyke had taken it into account, in looking at the whole matter.A week or two before the 15th November 1988 a Board Meeting had been held at which Mr Joels was present; together with Mr Graham, the Technical Director and Mr Morley the most senior of the Divisional Managers. At that meeting Mr Dyke came under pressure to deal with a question of the appointment of a financial controller as soon as possible, that of course was ultimately, Mr Sherman. After that Board Meeting he had a meeting on that 15th November with the Applicant. Shortly before the 15th November, Mr Dyke had been considering dealing with a purchase in connection with his and Mrs Dyke's pension fund, and we will return to that in a moment because Mr Pickup stresses that this was a very extraordinary situation. There was obviously an issue about what was said at that meeting of the 15th November but the Tribunal accepted Mr Dyke's evidence and they find and set out in (l) on page 7 of the Decision what occurred. There was then a letter sent that same day and a reply from Mr Pickup.Mr Pickup worked out his notice but during the period between November 1988 and February 1989 he became more and more dissatisfied with the situation and it is quite clear from the views of the Tribunal that looking at that correspondence the situation was deteriorating. They put it in this way:

"the applicant's annoyance with the respondents grew considerably."

and that was eventually until the date in 1989.The Applicant put forward, as the Tribunal understood it, three reasons for his dismissal. Mr Dyke was saying of course, "that we needed to re-organise the management team, and we needed someone more highly qualified to deal with the financial aspects and that Mr Pickup was not really capable of achieving it."However, today Mr Pickup emphasises that there was only one reason which he put forward for his dismissal and that was in connection with the pension proposal. He has told us that shortly before the 15th November he had presented Mr Dyke with a list of contingent liabilities of the Company and that the issue over the pension followed shortly after being presented with that list.The deal with the third reason, the main reason as follows on page 44 (iii):
"That Mr Dyke had something to hide by reason of a pension fund transaction concerning a building which was part of the Company's property. It was, by inference, the applicant's belief that Mr Dyke wanted the applicant out of the way as the applicant knew of what he alleged, in essence, to be dishonest machinations by Mr Dyke in relation to this building. The Tribunal infers that that is at least one of the matters to which the applicant was referring in his draft letter of the 10 February 1989, when he referred to `nefarious activities'. I do not propose to go into the details of this transaction carried out by the respondents and Mr and Mrs Dyke. What it broadly encompassed was the purchase for £750,000 by Mr and Mrs Dyke's pension fund of a building belonging to the respondents. The purchase price was provided by the declaration of a £1 million dividend for that particular year - apparently £750,000 after deduction of tax. It is quite clear from his demeanour and his evidence that the applicant was outraged by this transaction, and regarded it in some way as potentially illegal, if not in fact illegal. The Tribunal is satisfied that the transaction was carried out by Mr and Mrs Dyke and the respondents on the advice not only of their Solicitors, but also the advice of Binder Hamlyn, a well-known firm of International Chartered Accounts. It is inconceivable to the Tribunal that 2 such firms would allow a transaction of that nature to take place if there was any hint of illegality about it."
So the main reason put forward by Mr Pickup is rejected by the Tribunal. In fact today, Mr Pickup suggested that the transaction was immoral rather than illegal, however it is, it is there rejected. The Tribunal go on to comment:
"The Tribunal regards it as significant, notwithstanding the various allegations by the applicant of what he considered to be the true reasons for his dismissal, that despite being a man of forthright and frank nature he had not seen fit to expressly mention, even in brief, these as the real reasons for his dismissal in paragraph 13 of his Originating Application. Those then are the facts of the case."
The Tribunal then turns to the law, they set out the law perfectly correctly, they look at the reason, they find it to be some other substantial reason. They look to see what the attitude of Mr Dyke was and they found that he was acting perfectly reasonably and was acting on the report from AMS but also that Mr Joels had expressed his view and that is there found to be perfectly satisfactory and reasonable.They then go on to see Section 57(3). They applied Polkey and they then, in the penultimate paragraph say this:
"The decision of Mr Dyke in relation to the applicant fell into 2 parts. Firstly, that the applicant's duties would have to be absorbed by the new professionally qualified Financial Controller, and thus the applicant's position was effectively redundant, and, secondly, that there was no possibility of offering redeployment within the organisation."
They look at each of those and find that because of the exacerbation of the situation the deterioration of the relationship between Mr Dyke and Mr Pickup, there was no question here of solving the matter in any way other than that in which Mr Dyke decided to solve it.Having read all the documentation and having listened to Mr Pickup we emphasise again, our function here is solely to seek to analyse the Decision to see whether there is an error in the principles of law applied to the facts as found. This case was, very largely, a question of fact as to what occurred, who was believed, who wasn't believed. The Decision is set out there, with great clarity, in some 14 or 15 pages by the learned Chairman and we are grateful to him for the clarity of the exposition.We are unable to find any error of law and this Appeal must be dismissed at this stage, which it is.