Appeal No. EAT/718/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 18th February 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS J W COLLERSON

	MRS P TURNER OBE

E I ROGOFF LTD	APPELLANTS

MR R J DE VRIES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR M CROALLY
(Of Counsel)
Messrs Fuglers
Solicitors
70 Charlotte Street
London
W1P 1LR

	

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated the 18th March 1991, Mr De Vries alleged that he had been unfairly dismissed by his employers, E I Rogoff Limited.

	His case was heard on the 10th October 1991 by an Industrial Tribunal sitting at Manchester under the Chairmanship of Mr Bellis, who found in his favour that he had been unfairly dismissed and awarded him compensation in the sum of £9,477.

	The Company appeal by a Notice of Appeal dated 29th November 1991.  The appeal is said to be that the findings of fact were against the weight of the evidence and that there was no evidence before the Tribunal in relation to future loss of earnings.

	At the hearing before the Industrial Tribunal Mr De Vries represented himself and the Company were represented by Counsel and solicitors.  The Applicant gave evidence and so did a Mr Easter and a Mr Rothgiesser, who was the former Managing Director and is now a Consultant.  Mr De Vries was the Manager of the Manchester office.

	Two general points arise before we consider the Decision itself.  This is an appeal being heard ex-parte under the preliminary hearing procedure and it is yet again a case where although an award was made below, the applicants have not sought fit to go to the County Court to seek to enforce the award.  That procedure enables a District Judge, if he thinks fair, to order the money to be paid into Court where it will earn interest.  With the inevitable sad delays in this Court, the question of time is of importance when one considers awards and we would seek to draw attention yet again to that situation, it may be that in the documentation sent to parties with the written Decision, information could be included as to the rights which exist to go to the County Court for enforcement.  The second general point is this that Mr Croally, who did not appear below but appears as Counsel on this appeal, has raised two grounds of appeal before us, which we will consider in a moment, but which were not in the Notice of Appeal as settled.  It would be of enormous assistance and indeed highly desirable, that if the grounds are going to be changed before a preliminary hearing that information to that effect should be given to the Court so that the Industrial Members reading the papers were able to appreciate the basis upon which the appeal was being brought.

	To return to the Decision itself, the Tribunal found that Mr De Vries, the Applicant, was an acceptable witness and they find the background and essential facts in paragraph 3, they say:
"The respondents sell on a commission basis clothing abroad to the UK trade.  The respondents have an office in London and one in Manchester.  The applicant was taken on early in 1989 as a salesman in the Manchester office.  He was to join the existing salesman there, Mr Easter, and we accept the applicant's evidence that it was said to him when he was employed that Mr Easter would be retiring and would finish in about 6 months after the applicant started.  In fact Mr Easter never retired and never passed over to the applicant the accounts which he held."

So there are the basic findings of the Tribunal.

	In August 1990 the Company became concerned about the Manchester figures.  They wrote to Mr Easter in August of that year and Mr Easter showed the letter to the Applicant.  Mr Easter was told in the later paragraph of that letter about the question, together with Mr De Vries of applying themselves to the business and they were encouraged to put their best endeavours forward and in fact, the letter is, as I read it, really addressed to both of them.

	There were no further complaints from Head Office nor any further complaints to Mr Easter until a letter towards the end of February 1991 which is dated the 25th and which 
is with our papers.  This letter is written to the Applicant:

"Dear Ronnie

It is my task to inform you that the management of this Company has, with great regret, come to the conclusion to give notice to your employment.  You probably realise that in all this time you have not achieved a sufficiently high turn-over to cover your salary and overheads."

One might comment that that is not particularly surprising because Mr Easter had retired and therefore the accounts which the Applicant had anticipated coming under his control did not do so.  The Tribunal found that that letter was terminating the employment of the Applicant:
"on the basis that the applicant had not achieved the turnover which was expected of him."

and later in the Decision they say:
"We are satisfied that the applicant was dismissed for capability which is one of the reasons specified by Section 57 of the Employment Protection (Consolidation) Act 1978."

so that is found to be the reason.

	The Tribunal then consider the procedural aspect of the matter.  They say this in paragraph 5:
"There are rare cases where no consultation need occur before dismissal takes place.  Such cases are not likely to occur where the question of capability arises."

 then they deal with the reason clearly given in submissions as to why here there had been no consultation because they continue thus:
"It was said on behalf of the respondents that the applicant must have realised that he was not achieving what was expected of him.  We do not believe that to be so, but even if we did it does not excuse the respondents from dealing with the matter as any reasonable and fair employer would do.

It seems to us that the failure to have any consultation whatsoever with the applicant must make his dismissal unfair."

and they find that on the facts of the case that the Respondents were not acting reasonably in finding capability as a sound reason for dismissal.

	So that by the time one has read those paragraphs numbered 3-6 of the Decision it is quite clear that the Tribunal have accepted the Applicant's evidence.  They found that the reason for dismissal was capability, that this was not a sound reason on the facts and that there has been no consultation therefore it was procedurally unfair.

	In paragraph 7 they then turn to look on the basis of what has been called a Polkey v. A E Dayton Services Ltd  [1988] ICR 142 approach as to the likelihood where there had been a procedural failure;  that the Applicant would not have been dismissed had the situation been handled fairly.  They examine three situations, they look at the actual performance and that there was no evidence that Mr De Vries was not conscientious;  they look at what must have been the figures because they take the view that there was not enough business for two salesmen there, and thirdly that if in fact Mr Easter had retired, and he was in fact due to retire, that would have been a reasonable way, or might have been had the Applicant been able to put forward his case for dealing with the matter.  They think that that was the most likely way things would have gone had proper consultation taken place and they assess a percentage of 80%, they then proceed to assess the actual figure of compensation.

	Mr Croally first of all takes the point that the finding of incapacity was without evidence.  It seems to us, and he submits that really, if one reads the whole Decision their findings were inconsistent in that the Tribunal when looking at the likelihood of the Applicant being dismissed, the 80%, when they looked at that they looked at the possibility of redundancy.  It seems to us abundantly clear here that the Tribunal, which was a very experienced Tribunal was looking at the reason and were clearly entitled to find on that letter alone, and there was evidence called as well which of course we do not have before us, that the reason was incapacity and they thought that that was not a sound reason or a fair reason in the circumstances.  There is nothing in that point, with respect to Mr Croally.  Then Mr Croally submits the paragraph 7 which is the reasoning given for the assessment that the likelihood of success was 80% is a misdirection, because he submits that this was a wrong test to apply to the consideration whether the dismissal was unfair.  It seems to us that paragraph 7 is really dealing with the compensation, the unfairness had already been found and the Polkey approach, whether one takes the approach of Lord Mackay, the learned Lord Chancellor the consultation was "utterly useless" or the later wording of Lord Bridge on page 163, had already been considered by the Tribunal in the earlier paragraphs in our judgment.  There is no conflict between the earlier paragraphs and paragraph 7.   The Tribunal were doing their best on the evidence before them and the documentation and indeed having seen and heard the parties, to assess what the likelihood would have been had there been proper procedure, proper consultation in the present case.  It is never an easy task and indeed one probably has to take some "rough and ready" approach in many cases. Here, the Tribunal approached it with care and analysed the three possibilities, decided which they thought was the most likely and that is the approach which has been encouraged from Polkey and in our respectful view here, there is no criticism of the very careful way in which this compensation was assessed. 

	So that taking the original grounds of appeal;  taking the grounds now put forward succinctly by Mr Croally, we are unable to reach the conclusion here that there is any evident error of law which merits a full hearing inter partes of this Appeal.

	In the circumstances therefore, this Appeal must be dismissed at this stage which it is.