Steelprint Ltd v Haynes [1996] UKEAT 467_95_0107

EAT
Steelprint Ltd v Haynes
[1996] UKEAT 467_95_0107 · 1996-07-01

JUDGE ALTMAN :

This is an appeal from the Bedford Industrial Tribunal which sat on 14th February 1995 and found that the employer had unfairly dismissed the employee because, putting it in a nutshell, at a time when they changed the job content of her employment, they did not take such steps as a reasonable employer would have taken to enable her to have the skills over a period of time to adapt to those changes.

FACTUAL BACKGROUND

The respondent was dismissed on 9th September 1994. The appellants were a printing company specialising in the marketing and printing of small self-adhesive address labels.The applicant began her employment in April 1989 with the job title of `Order Clerk' to work "initially in the proof room department where appropriate training will be given. It is a condition of your employment that you are fully flexible with your approach to working practices and hours." In the absence of a job description the tribunal assessed her contractual work responsibilities by inference from the work she was engaged upon. The main work of entering orders which were received was in fact done in the main office building. Although the respondent's job title was `Order Clerk', she in fact worked in what was called `the studio', and the tribunal found that 80% of her work was proof-reading. This continued for approaching five years without, apparently, any relevant complaint from the employer as to the way in which she performed her duties. Then from January 1994 the appellants made widespread changes in their organisation to adapt to competition and computerisation, and that included a "re-structuring" of the Order Clerks Department. The respondent, together with eight other order clerks - so-called - were moved to the main building; and the work content of their jobs was changed. In addition to proof-reading the respondent was now required to undertake the inputting of orders into the new computer system. To do this she had to be able to touch type, and this skill lies at the heart of this case.The tribunal found:
"(5) ... The applicant's duties prior to January 1994 had not involved order entry work other than to a very small degree. She was therefore not experienced in it and her lack of touch-typing skills meant that it would take her time to improve her skill in this area."
These changes constituted a change in the employee's duties and a variation in her contract of employment in so far those duties, as found by the tribunal, were concerned.The speed and accuracy of the employee in in-putting orders was not acceptable to the appellants. The tribunal did not question the reasonableness of the standard set by the employer, but they did question the period of time the appellants gave to imposing this, and secondly they questioned the extent of help and training which was given in this adjustment which had been imposed.So far as time-scale is concerned, the employers spoke to the employee monitoring her standard of performance on four occasions between February and April 1994. Then they initiated, in effect, a disciplinary process, in which the employee was given a succession of warnings.(a) On 3rd June she was given a verbal warning and a target of 29-31 orders per hour until 8th July, and then 32-34 per hour until 22nd July, with an error rate of 4-5%.(b) On 19th July she received her first written warning and a target of 32-34 per hour was repeated; though the tribunal described this as an increase, in fact it was not.(c) On 22nd August there was a final written warning, by which time her order entry speed had increased to between 30.5, which was within the June/July target set by management, though below the later target, but it had a 14.1% error rate, which would undoubtedly cause concern to any employer.(d) On 9th September the respondent was dismissed and she then failed subsequently in her appeal on 16th September.So far as help and training are concerned, the tribunal made the following findings; first, that others had a rota, changing the type of work they had, but the respondent had to do predominantly order entry work, and the tribunal found this to be unreasonable. They found in due course that the appellants did not give due consideration to moving her to other duties. Secondly, they found that she was under domestic and financial pressure at the time. Thirdly, they found that in assessing the tests in the relevant case law, the employers satisfied the tribunal they had produced evidence of poor performance and established this as the real reason for dismissal. Fourthly, they found that the respondent did show an improvement. ( I will return to that in a few moments as to whether they were justified in doing so.) Fifthly, they found that the employer put her under undue pressure, especially from June to September which they described as under two months, and from the final warning to dismissal, a period of ten days. Finally, They criticised the lack of training. They said this:
"(9) The applicant received little or no training on her new duties. There was no outside training of any kind. Mr Dickinson confirmed that he had not even considered such training. For an employee of some five years' service, the tribunal finds that a total lack of such consideration for outside training was unreasonable. Of equal and perhaps more importance was the lack of any real substantive in-house training at this time. The tribunal accepts that Mr Dickinson did spend time with the applicant discussing her performance but this was not the same as providing actual "hands on" training of a kind designed to specifically assist the applicant in improving her work."
In the documents supporting this appeal, the appellants suggested that the tribunal itself had raised the spectre of outside training without even considering what such training would be. But that was not pursued or referred to in oral argument before us, and indeed, it does not take much imagination to consider what outside training in touch typing amounts to.

GENERAL GROUNDS OF APPEAL

It is criticised on two grounds, first, that conclusions from the facts are perverse to such an extent as to undermine the whole decision, and secondly that the tribunal substituted its own view on material before it rather than applying the tests provided by statute with the various glosses put upon them in case law. Those two things really overlap to a very large extent.

SPECIFIC GROUNDS OF APPEAL

The first ground relates to paragraph 6 of the tribunal's reasons which really contained the decision. It is accepted that the tribunal directed their minds to the proper test, although it is questioned as to whether they did in fact apply it. This tribunal does not require a slavish adherence to particular forms of words, and indeed as is implicit in Mr Clark's submissions, it is important to look at the substance of what the tribunal did as well as the words they used; whether in fact they substituted their own judgment for that of the proper statutory test, which is to decide whether the appellants behaved reasonably or unreasonably in treating the incapability of the respondent as the reason for dismissal. In paragraph 6(ii) it is said:
" (ii) ... the applicant was showing an improvement, albeit very gradual, in her entry work over an eight month period."
That is really an assertion of fact, and a factual finding upon which the tribunal found against the appellants on their overall conclusions. But it is based, says Mr Clark, on a misunderstanding of the evidence before them, it flies in the face of logic and contains a mathematical error. In support of that argument, he refers to paragraph 2(15). That paragraph deals with the last two weeks, between final written warning and dismissal. Whilst it records an increase in error rate from 14.6% to 15.3%, the tribunal records an increase in the number of orders entered from 383 to 693. The tribunal therefore points out that objectively within the week the respondent produced more accurate entries.We accept Mr Clark's point that this confuses speed and accuracy; because the speed is based on the hourly rate, not on the total number done. The obvious inference from those figures is that all that happened in those weeks was that more time was spent doing orders. Therefore neither the hourly rate nor the accuracy rate, closely connected as they are, is shown on those figures to have improved. However, whilst it may be that those figures on their own do not give rise to the positive conclusion that there was an improvement in those two week's and whilst it is true that those two weeks show error rates well below the appellants' target, there was no evidence before the tribunal of the hourly rate because as we have been told the figures were not produced. We were told by Mr Clark that as to the hourly rate, one or two less an hour did not really trouble the appellants very much. But the target hourly rate is a matter that was adverted to in discussions and it is not clear to us that the hourly rate was not crucial, indeed everything appears to have pointed to its being as crucial at least as the error rate. But Mr Clark does not really deal with the total findings of fact of the tribunal. It appears from paragraph 2(13) of their decision, that when the interview was taking place which heralded the final written warning, the order entry speed had increased to 30.5 entries per hour, which was in fact the target that had been set for the early part July. So there was clear evidence before the tribunal of an improvement. The fact that in their decision at paragraph 6(ii) the tribunal described the improvement as being "albeit very gradual" , shows that they were not relying exclusively upon the material which was in error to which I have already referred.It seems to us by introducing that particular paragraph within the body of their decision as essentially a matter of fact, what the tribunal were saying was that there was some indication from the work of the respondent that if the matters that the tribunal were criticising had been fulfilled there was a capacity to improve, and although it had been very slight, they felt that there was evidence to support it.Mr Clark says that we do not know what the tribunal would have said about that if they had not fallen into the mathematical trap they set themselves. But it seems to us quite clear that that was simply a background piece of information justifying their conclusion that had the steps which they said should have been taken, in fact been taken, they may well have improved the situation.So first, that particular paragraph is not central to the question of reasonableness, although it may be relevant to the issue of compensation as to whether there was any prospect of improvement; and secondly, in any event there was a factual basis for that finding of improvement. We reject the proposition that it was perverse.The next matter which is raised by Mr Clark is paragraph 6(iv). The finding in that paragraph by the tribunal is this:
" (iv) Undue pressure was placed upon the applicant from the time Mr Matthew Dickenson began to speak to her on the 9th February 1994 to her dismissal on the 9th September 1994. In particular, from the time she was given her verbal warning to her dismissal was only from the 3rd June 1994 to the 9th September 1994 - a period of less than two months. From the time of her final written warning on the 30th August 1994 to her dismissal on the 9th September 1994 was less than two weeks. By any stretch of the imagination this time scale is far too short and did not give the Applicant sufficient opportunity to show an improvement in her work and to comply with the standards set by the respondents."
Mr Clark says that the tribunal made a mistake because they described the period from 3rd June 1994 to 9th September 1994 as being a period of less than two months rather than a period of just over three months. Upon that basis he submits that it is impossible to know what conclusion the tribunal would have drawn upon the timescale had they addressed their minds to the fact that it was just over three months rather than less than two months.Reading into the mind of a tribunal is a task that no Appeal Tribunal undertakes with relish. We have to go on the decision of the tribunal which was given to the parties in order to assist them to understand the reasoning and thoughts behind the conclusion of the tribunal. It is not given in a context of strict pedantry, and therefore the Appeal Tribunal will not approach a decision of an Industrial Tribunal by picking carefully over every word and phrase that is used, in order to see if there are any chinks.The tribunal set out the dates and specified them - 3rd June to 9th September. They set out the starting time of 9th February. They set out the period of under two weeks between final warning and dismissal. They referred to the whole thing as single timescale which they described as being far too short. There is not any reason to suppose that the fact that they described one such period as being a month shorter than they should have described it, had anything more than a marginal effect upon their judgment. They had sat, they had listened to the evidence, they had listened to the descriptions of how the time had been spent, the counselling sessions, what had been said at each warning session, what had happened in between; and simply because in their decision one such period is described as less than two months rather than just over three, it seems to us is of marginal significance. It is an error, but we can find no material upon which we could conclude that as a result they came to a conclusion which was so perverse as to bear no real relationship to the facts of the case or to be justified by the facts of the case. Accordingly we reject that submission.It is then suggested by Mr Clark that they substituted their own view for that of the employers.

(i) of the decision in which it was said:

" (i) Taking into account the applicant's previous lack of experience in order entry work prior to 1994 and thereafter to expect her to concentrate primarily on this duty, was unreasonable in light of the lack of flexibility shown to the applicant in conducting other duties and in respect of the lack of any full training provided to her in 1994."
Two aspects which really rely at the heart of the tribunal's decision are a lack of flexibility on the part of the employer and a lack of full training in 1994.Mr Clark says that that is wrong and indeed that the tribunal substituted its own view of the matter that the employee should have received special treatment, in spite of the fact, as he points out, that in paragraph 2(4), (5) and (6) of their decision, the tribunal had made it clear that they saw that the appellants decision to reorganise and the way they reorganised was not a matter for criticism. Indeed, we would only add that management must be left to form proper judgments as to the way to run their business, and it is no business of an Industrial Tribunal or an Employment Appeal Tribunal to tell management how to run their businesses.But it seems to us that the question of lack of flexibility shown to the applicant, referred to in paragraph 6(i) is in fact a reference back to something else, which is what the tribunal said at paragraph 2(10). They there pointed out that the approach of the appellants was to keep the respondent fixed on order entry work until she improved, rather than moving her to the broader range of activities they had in store for her in the long term, and which her fellow employees moved on to, and to decide to make her stick at the order entry work until she reached the required standard. It was not suggested, as we understand it, that that was some form of training, but simply a determination on the part of the management not to go to the next stage until the respondent had shown she could do the first. Indeed, although it is no part of the tribunal's decision and no part of our judgment in this appeal, it does seem to us that the employers may have confused the process by which an employee should learn to be quicker and more accurate with their determination to achieve standards in different areas before moving on to the next. We suspect that they may well have thought that this would have been a way to train her on it. But it seems us that in the light of the tribunal's finding of fact as to the keeping of the respondent mainly on order entry work as opposed to other employees, they were entitled to come to the conclusion that applying the reasonableness test, there was a lack of flexibility shown to the respondent in conducting other duties, in other words, in keeping her away from other duties which she may possibly have excelled.We have no view on this. We did not even see the witnesses and study all the evidence. We have no views one way or the other. But there is no evidence before us of substitution of views by the tribunal there. It seems to us that they made a finding of fact as to the lack of flexibility which was consistent and available to them in the light of the evidence before them. They then applied the proper reasonableness test and said that the appellants failed it. They then went on to say that the same applied in respect of any full training provided to her.Mr Clark says that that finding as to training was a substitution by the tribunal of its own views. It seems to us, though Mr Clark did not say so specifically and we think it fair to treat it as such, that it was really put forward also as a perversity ground that there was no real evidence upon which the tribunal could conclude that they did not investigate full training. Mr Clark says the tribunal seemed to have produced this idea of their own motion, when the truth is that training was explored and discussed between the parties at counselling sessions and training was in fact given. In reliance upon that Mr Clark has helpfully produced for us a document of one of the early disciplinary meetings in which there was a discussion. Management meticulously prepared topics to put to the employee at their discussion, which were typed on a sheet of paper. It started by giving a piece of advice about looking at the order forms so as to get a picture of the correct details before starting. They recorded the respondent's reply. It then referred to the fact that one of the respondent's colleagues had been asked to make sure that she knew of all the short cuts, and she said she did. She was asked "Do you type ahead?" and she replied "No, but will do now" . She was asked "Anything else you can think of that may help you to improve your order entry performance?" she answered "No, will just try harder." Questioned "More training?" she answered "No, Mark has done a good job and will just ask if come across something not sure of." Then the conclusions are set out:
"7. Now that discussed the problems with your performance, I need to make it clear what I expect from you in the future and how I will monitor your performance ...
What are you going to do to help you reach these standards?

Order entry: [ She replied ] Try harder."

We have also had an opportunity of seeing the proof of evidence which stood as the evidence of the appellants before the tribunal, which was attached to their Notice of Appearance, or at least the Notice of Appearance was before the tribunal itself in any event. When the new changes that were being brought about were reported to the employees, the appellants representative stated:
"I explained that we needed everyone to do their fair share of all duties and that everyone would be trained accordingly. The Order Clerks from both buildings had already received two-day introductory training on the new Apple Macintosh computers in October 1993.
... The move to the main building made it possible to start training all the Order Clerks on all the duties that they were appointed to do. Prior to the move, I decided which Order Clerks would first be trained on order input and which would first be trained on the Apple Macintosh computers.I told Philippa that she would initially be trained on order input ... Had she shown she was capable of achieving acceptable standard on order input, she would then have been trained on other duties."But what the tribunal were concerned with no doubt, was not the mechanics of how to do order inputting which was a demonstration of procedures, which is what as we understand it the employee `Mark' was concerned with; nor indeed, a demonstration of how to use new equipment. What the tribunal's attention had been directed to by the appellants was not her knowledge of the procedures and what to do to fulfil the requirements of the respondents, but how to do it quickly enough and accurately enough. In relation to that, which was the substance of what everyone was talking about, they came to the conclusion that there was no reasonable consideration of training. It seems to us that the fact that the employee was asked if she needed more training, is a little bit of a side issue. If someone is to improve in accuracy and speed, how else is she to do it other than by training? Unless it be suggested that a typist is spending the time thinking of her holidays or something else, or that she is not concentrating in a disciplinary sense, then what else is there available? If there is no training required, how is the person going to improve?We do not understand how the tribunal could view this situation any other than one in which the employer was in effect saying "You need more training, but you are not going to receive it". That is putting it rather crudely, but the appellants were demanding an improvement. If there was no capability of improvement, then why did they wait before dismissing? Why did they not simply say "This rate is not sufficient, you are not capable of doing it, you will be dismissed". If there was a capability of improvement, how was it to be achieved if not by training?We put that in terms of argument directly in the content of our judgment. But our task is not to argue the case or to take the points on their merits, but really to consider whether it seems to us, that the Industrial Tribunal were either substituting their own view, or coming to a conclusion which the evidence did not justify. But as Mr Haynes has so rightly said in his submissions on behalf of the respondent, this case was all about training. The tribunal came to the conclusion that to expect someone to take on what is effectively a new job without considering the full training, was outside the range of responses that a reasonable employer would contemplate before going on to dismiss. We cannot see anything in that conclusion of the tribunal remotely said to be unfounded on the evidence before the tribunal. There was evidence that there was no training, and there was evidence of inflexibility. Furthermore, we see nothing to suggest that they were imposing their own view upon the appellant. What in fact Mr Clark does, it seems to us, by referring to the discussion with the respondent in which the respondent was asked if she wanted training, is to re-enforce the decision of the tribunal, and not to attack it. The re-enforcement is provided because it forms a basis for the tribunal saying that being aware of the need for training, the appellants in effect left it to the respondent to decide and did not make their own judgment about it.Finally, going back to the question of improvements and whether there was any improvements the tribunal came to the conclusion that there had been an improvement. Mr Clark says that implicit in that finding is a finding that an error rate of 14% was acceptable and that therefore the tribunal substituted its own view. First, the tribunal does not say that any achievement of the respondent was satisfactory, but simply that it was improving. Secondly, and in any event, there is no evidence to support the proposition that when the tribunal found that there was an improvement, they were referring to the error rate. There is evidence that they were referring to the improvement found on 26th August 1994.We have come to the conclusion that there is no substance in any of the matters raised in this appeal and it is dismissed.