MR C S LALLI v EMPLOYMENT SERVICE [1999] UKEAT 347_99_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 347_99_1310Case No Appeal No. EAT/347/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C S LALLIAPPELLANTEMPLOYMENT SERVICERESPONDENT
Before
His Honour Judge J HicksDate 13 October 1999
[1]APPEARANCES For the Appellant MS D ROMNEY (of Counsel) UNDER EMPLOYMENT LAW APPEALS ADVICE SCHEME (ELAAS) JUDGE HICKS: The Appellant, Mr Lalli was employed by the Respondent, The Employment Service, as an administrative officer and had been in that post for some ten years as a part-time employee working two days a week. He was dismissed by the Respondent on grounds of capability, namely that in the judgment of the employer he was inefficient. The Tribunal sets out at some length the procedure that was followed leading up to that dismissal, which involved a number of meetings, warnings, interviews and requirements by the employer that the employee submit to training and take other steps to improve his performance. The Tribunal finds that at the very earliest stages there were one or two procedural slips on the part of Ms Hegewald, who was conducting that part of the procedure, and clearly the Tribunal took that into account in reaching its decision. Eventually the matter was dealt with in this way, and the procedure which was followed was that established in the Employment Service, which the Tribunal find to be unusual but perfectly fair. The question for us is not whether it is unusual, but whether the Tribunal was wrong in law in finding it fair. They describe it in this way. Ms Hegewald, as I have said, was the person who conducted the earlier stages of the performance reviews and other procedures and was, I believe, the direct Line Manager of Mr Lalli. But under the Employment Service procedure the actual decision whether to dismiss was to be taken by the Regional Personnel Manager, Mr Hitchin. The complete file on the matter was collected, when this stage was reached, by Mr Hitchin's staff and was dealt with by a Mrs Lines, whom the Tribunal found a most impressive witness, and they continue as follows in their reasons:
"Mrs Lines had in front of her all the documentation in connection wit the various performance meetings, targets, documents showing failure to meet targets etc., and also a long, detailed case from Mr Lalli, showing why in his opinion Miss Hegewald's recommendation should not be followed. Mrs Lines through her staff, in particular a Mrs Julia Evans, produced a document which set out the case in detail, giving the strengths and weaknesses of both sides. It is an excellent review of the position and gives full weight to all Mr Lalli's points, including emphasis in a hand-written note [on] the procedural error at the beginning. Mr Hitchin read all these documents and took the opinion that, despite the procedural error, this was a perfectly reasonable case to follow the recommendation of Miss Hegewald. A letter shows the reasoning and the statement and evidence given by Mr Hitchin showed to the satisfaction of the Tribunal that he did consider all the relevant points. There was subsequently an appeal to Mrs Ross, which confirmed the dismissal. This was not by way of re-hearing but was only covering the points put forward in the appeal by the union on behalf of Mr Lalli. However, as it was not a re-hearing, this appeal could not rescue the decision to dismiss if Mr Hitchin was wrong."
[2]The first of the two points made by Ms Romney on Mr Lalli's behalf is that that procedure was arguably unfair because the employee did not have direct access to the decision maker, Mr Hitchin, and she accepts that in order to be arguable as a ground of appeal it must be arguable that that blanket proposition is true, namely that in every case of dismissal for capability the employee must have direct access to the decider. We do not consider it arguable that any such blanket proposition is the law. In every case the test is that provided by the statute and commonly summarised by saying "did the employer act reasonably in treating the reason for dismissal, in this case lack of capability, as a reason justifying dismissal" and, in our view, no such general proposition as that propounded by Ms Romney constrains the investigation of that question.[3]Ms Romney did refer us to the case of Budgen - we have not got the authority before us but she read briefly from the head note – and the judgment delivered in this Tribunal by Mr Justice Phillips and it is perfectly true, as we understand it, that a proposition was laid down there in a conduct case which might seem to be of the kind which Ms Romney now advances. First of all that was a conduct case, not a capability case. Secondly, like all propositions in decisions of the Courts and Tribunals, it must be seen against its facts, which in that case included the very material circumstance that the only face-to-face interview with the dismissed employee was by somebody of no higher status than a Security Officer, not even in direct line management responsibility for the employee. We decline to believe that that case is authority for the proposition which Ms Romney seeks to advance. We appreciate that we are not hearing the substantive appeal and that we must, in order to dismiss this appeal on this ground, reach the conclusion not just that that proposition is wrong, but it is unarguably wrong. We are quite satisfied it is unarguably wrong and therefore we dismiss that ground.[4]The second ground arises because among the grounds of appeal is a lengthy attack on the conduct of the hearing by the Employment Tribunal in general and its Chairman in particular and Ms Romney advances one particular point which arises in this way. In paragraph 16(b) of its reasons the Tribunal among the issues which had to be decided having in (a) set out the issue whether the Respondent genuinely believed that the Applicant was inefficient on the evidence before it, sets out as issue (b): "was the evidence accurately perceived and presented?".[5]As Ms Romney agrees, in the context that must mean accurately perceived by the employer and presented to the officers of the employer who had to make the decision, in particular Mr Hitchin.

(b) "yes" and goes on to give its reasons:

"The documents (referred to as coupons) which were produced clearly showed that the Applicant did not do his job properly. His excuses, which usually amounted to, "
It was somebody else's fault", or "the computers did not cover the point", were just excuses and did not hide the fact that frequently the work he was required to do he did not do."[6]As Ms Romney agrees, it cannot be supposed that at that point the Tribunal was substituting its own view for the Respondent's. What it was plainly doing, and she accepts that this is perfectly legitimate, is using its impressions of the documents as part of the basis on which it can answer the question which it has posed whether the evidence was accurately perceived by and presented to the management of the employer.[7]What Mr Lalli says in a lengthy set of grounds of appeal verified on affidavit about this is:
"It appears the Tribunal have chosen to ignore the prevarications made by the Respondents regarding the issue of coupons."
And then he goes on in a lengthy paragraph to summarise his criticisms of the Respondent's evidence on the point and credibility of their witnesses. In our view this does not show an arguable ground of appeal. It is answered briefly and compendiously by the Chairman's comments which must be directed to other points as well as this particular one, because some of what the Chairman says in the relevant paragraphs is not directly concerned with the coupons but it is clearly intended that this, among other points, should be covered by the paragraph in the Chairman's comments which reads:
"Mr Lalli in his not unskilful cross-examination did establish some inconsistencies in the Respondent's evidence and procedure. However, in the unanimous opinion of the Tribunal on the important issues the credibility of Miss Hegewald's evidence was vastly preferable to Mr Lalli's, and reasons for this preference are given in the judgment [as they plainly are] … Once this question of credibility was established, Mr Lalli's allegation that Mr Hegewald was biased against him clearly failed."
[8]The last sentence of course is not directly related to the point raised in Mr Lalli's paragraph 19 but, in our view, the picture is clearly this. The Tribunal had to consider whether, as they put it, the evidence was accurately perceived by and presented to the employer's management. In reaching a conclusion about that it has had to take into account the oral evidence on both sides and, as the Chairman accepts in his comments, some inconsistencies in the Respondent's evidence and procedure were no doubt on this, as on other points, established by Mr Lalli. But those witnesses were having to try to remember what impression had been made to them by the documents some substantial time earlier.[9]The Tribunal was perfectly entitled also to take into account, not by way of forming its own view, but by way of asking itself what impression was likely to have been formed on the mind of the management by these documents, its own impression of the documents and that, as we understand it, is the process which is being dealt with in paragraph 17(b). It goes for nothing for Mr Lalli to say that not one of those documents in fact established what they were being presented for. That was no doubt his case and was no doubt advanced below, but the Tribunal plainly took a different view. We therefore see no error of law under that head either and, those being the two matters advanced by Ms Romney, the conclusion must be that this appeal fails and is dismissed.