Marion Merrell Dow Ltd v O'Donoughue [1994] UKEAT 723_93_0505

EAT

Marion Merrell Dow Ltd v O'Donoughue

[1994] UKEAT 723_93_0505 · 1994-05-05

JUDGE HULL QC:

This case is in our list under our practice direction to see whether there is in truth a point of law which is fairly arguable, because we can only entertain appeals on a point of law.

There are two grounds of appeal here. Miss O'Donoughue, who is a lady in her early 30's, was first employed by the Appellants, the employers, on the 23 October 1989. She was a retail representative. At first she underwent training and then she was engaged as a travelling representative selling to pharmacists, as outlets for the employers products.

In 1991 she was seriously unwell and had to go to hospital. Not only was she unwell but (perhaps connected with that) the employers became dissatisfied with her performance when she was at work and she received a warning or warnings; her rating in her employment was not satisfactory. There was a requirement from the employers that she should be interviewed by Mr Hill, who was the Regional Manager. Mr Sheehan was senior to Mr Hill, he was the Retail Sales Manager and he was not present at the meeting which was held at a hotel in Knutsford.

At that meeting there was a long discussion between Mr Hill and Miss O'Donoughue about various matters. One matter had given the employers very serious dissatisfaction. Miss O'Donoughue had sold products which were not being delivered until later in 1992 and those figures had been included in her performance figures on which they were working, and had given a false impression, that apparently was due to internal rules about what could and could not be included in the sales records. Therefore her results, which had been rather encouraging were found to have been in that sense, false results.

The upshot of this meeting was that Miss O'Donoughue resigned. She gained certain advantages by resigning, but she was warned that if she did not resign she would be dismissed. It was said that the matter would go before Mr Sheehan and she would be dismissed. That is what the Tribunal found.

The Tribunal found that Mr Hill had expressed his disapproval of the Applicant's conduct which he considered to be unacceptable, amounting to gross misconduct. Mr Hill eventually presented the Applicant with two alternatives. The first was that she could resign. The second alternative, as the Tribunal unanimously found, was that the matter would have to be referred to Mr Sheehan, and that would result in her instant dismissal. Then the advantages of resignation were set out. In paragraph 9 they say:

"The Tribunal is of the unanimous view that the words used by Mr Hill effectively presented the applicant with an ultimatum - "resign or be dismissed" and that, having regard to the authorities regarding such situations, that was tantamount to a dismissal. Although the applicant was being offered terms if she resigned which would be better than if she were dismissed, the Tribunal is of the unanimous view that it was not the terms being offered that brought about the resignation but rather the ultimatum itself."

Those are the findings of the Tribunal which alone is entitled to find the facts, both about what was actually said and what it amounted to. It appears to us that that is simply a finding of fact that this was not a conversation in which various alternatives were explored, but a clear ultimatum "resign or be sacked". If the employee resigned in those circumstances and on the basis of such a conversation, that is, or at any rate is capable of being a dismissal and the Tribunal so held.

Mr Norbury, who has addressed us on behalf of the employers, says that the issue of whether there was a dismissal turns entirely on the meeting and what was said. The Tribunal heard the evidence and we of course have not. They had to decide what was said. Then Mr Norbury made a submission, which certainly is capable of being a submission of law. He says that the threat was not what Mr Hill would do, because Mr Hill had no authority to dismiss. He says it was Mr Sheehan who alone had authority to dismiss, and we of course assume that that is correct. But here was Mr Hill who was a senior man. He was a manager dealing with one of his sales staff and saying what Mr Sheehan would do. Mr Norbury says that that was no more than saying "of course if you do go under the disciplinary procedure before Mr Sheehan you may be dismissed".

That may very well have been a possible view of the evidence, but it is not in fact what the Tribunal found. If that had been all that had happened, that Mr Hill had outlined the disciplinary procedure which would or might follow if she did not resign, the Tribunal might have reached a very different decision. But it appears to us that it is simply a gloss which is not justified in any way by anything which we have seen and that the Tribunal's decision, as a matter of fact, must stand.

Then there is the point of law that Mr Hill was not entitled to dismiss. Therefore he was merely passing on what Mr Sheehan would do and not what he, Mr Hill, would do. It appears to us that that is a distinction without a difference. If Mr Hill was acting, as he undoubtedly was, on authority, he was passing on, on the authority of the Retail Sales Manager, what would happen; and it appears to us that that has just as much effect if it is said by Mr Hill as if it is said by Mr Sheehan. Even if that is in doubt, it is a matter for the Tribunal and not for us. No doubt the seniority of the person holding the conversation must be very important. If such a threat were made by somebody completely unauthorised, simply a colleague in the office who said "if you go in front of Sheehan you will be sacked", the Tribunal might well take the view that that was said first of all without authority and, secondly, without any accuracy at all. But it was not like that.

The Tribunal took the view that it was a case of "resign or be sacked", and we cannot find that this point, which is certainly capable of being a point of law, is in any way a point of law which is fairly arguable. It was simply a case of Mr Hill passing on what he evidently had authority to pass on, "resign or be sacked", and she did resign as a result.

Then there is an appeal against the finding of the Industrial Tribunal that Miss O'Donoughue was 35% to blame for what had happened. That is of course first and foremost a matter of fact. The way in which the Tribunal dealt with it is as follows. They say in paragraph 11:

"The applicant was given no advance warning that the meeting on 22 January 1992 was a disciplinary hearing which might result in her dismissal. ........... the Tribunal is of the unanimous view that the dismissal was unfair in that the decision to dismiss the applicant for the conduct alleged was not within the band of reasonable responses from a reasonable employer. However, the Tribunal is of the view that the actions of the applicant in distorting her performance figures for the latter part of 1991 by including therein orders in respect of which delivery dates were well into 1992 was behaviour which amounted to contributory conduct on her part towards her dismissal. Having considered all the circumstances, the Tribunal is of the unanimous view that the percentage reduction of compensation by reason of such contributory conduct should be 35%."

Mr Norbury says that is not enough. He started his submissions by saying to us that it is clearly a matter of degree, the assessment of contributory fault. We agree with that submission. Matters of degree however are matters of fact, by definition. Mr Norbury went on to say that no Industrial Tribunal could properly have arrived at such a finding as 35%. It appears to us on the contrary that that was well within their discretion. It is a finding which could only be reached after hearing all the evidence, assessing the seriousness of such matters as the undoubted inclusion in her results of forward sales, her illness and the degree of blame worthiness on each side; had she been treated properly and given proper opportunities by her employers? All these matters had to be considered. Had she dealt fairly with Mr Hill in the course of discussions? Had he dealt fairly with her?

These were matters which had to be considered and the Tribunal did consider them. We cannot find as a matter of law that there is any error whatever in the way in which the Tribunal arrived at their decision. Having heard Mr Norbury make his submissions, for which we are grateful, we cannot find that there is any arguable point of law in this appeal. They are purely questions of fact and accordingly the appeal must go no further and falls to be dismissed.