Appeal No. EAT/882/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 March 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MISS C HOLROYD

	MR R TODD

MR R P ADAMS	APPELLANT

LITHO SUPPLIES LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING
	
Revised

	APPEARANCES

For the Appellant	MR R MAWHINNEY
 (OF COUNSEL)
 Messrs Batten & Co
 Solicitors
 Fore Street Chambers
 Chard
 Somerset TA20 1PT

	

	MR JUSTICE MUMMERY (President):    This is the preliminary hearing of an appeal brought by Mr R P Adams against the decision of the Industrial Tribunal, held at Bristol on 29 and 30 March, and 8 and 9 June last year.

	Mr Adams' complaint was he had been unfairly dismissed by his former employers, Litho Supplies Limited.  For reasons notified to the parties on the 17 June, the Tribunal unanimously decided that Mr Adams was not unfairly dismissed.  

	On the appeal Mr Adams put in a notice prepared for him by an independent legal practitioner, setting out numerous grounds, some of which have not been pursued by Mr Mawhinney of Counsel.

	Before I turn to the three main points made by Mr Mawhinney on the appeal, it is necessary to say a little about the actual background to the dispute.  The Tribunal found the following facts.  Litho Supplies Ltd carries on business as the supplier of equipment to the printing and graphic trades.  The business involves acquiring and delivering supplies to customers.  An important part of that business is the warehouse function.

	Mr Adams began working for Litho in April 1989, at premises in Bristol.  He worked initially as a driver/warehouseman.  In September 1989 he was appointed warehouse manager,  not having had any previous experience of that work.  Initially there was no dissatisfaction with his work.  The Tribunal found that he had worked hard and willingly.  That situation did not continue.  The Tribunal in its decision set out a history of various criticisms which had moved Litho to issue warnings against Mr Adams about the performance of his job.

	Litho's dissatisfaction with Mr Adams' performance started towards the end of 1991 and continued into 1992.  The Tribunal stated that it was satisfied that during the Spring of 1992 Litho continued to be concerned as what it saw as failures by Mr Adams to improve his performance.  He was given warnings.  Further incidents occurred later in the year.  On the 15 April a letter described as a second and final warning was issued.  

	The Tribunal found that letter reiterated matters discussed in previous meetings.  There had been some procedural irregularities in the way that Litho had dealt with the matter, but the Tribunal stated that it did not appear to them that Mr Adams could say that he was at a disadvantage in not knowing what was being alleged against him.

	There were further meetings in May in relation to an issue, described in the decision and known as the "chemical issue".  It was an incident on the 15 May that culminated in Mr Adams' dismissal.  Mr Adams' case was that it was the chemical issue that was responsible for his dismissal.  The Tribunal took a different view and felt that the importance of that particular incident had been exaggerated.

	The Tribunal came to their conclusions.  They stated that, overall, they were satisfied that Litho had reasonably concluded over the course of Mr Adams service, and particularly since the Autumn of 1991, that, for whatever reason, he was unable to do his job in the way that it should be done.  The Tribunal referred to criticisms of Litho's disciplinary procedures, and concluded to a great extent, the criticisms were justified.

	In paragraphs 18 and 19 the Tribunal stated their conclusions on the main questions .  First, the Tribunal said that, by the time the final written warning was issued and the dismissal took place, Mr Adams was very well aware of Litho's criticisms of him, and of the case he had to meet.  The Tribunal stated that they were not satisfied that the defects in the disciplinary procedures were so serious as to render his dismissal unfair for that reason alone.  The Tribunal quoted the question Mr Pringle posed of behalf of Litho at the beginning of his final address.   

		"Can we say no reasonable employer would have dismissed this employee in these circumstances?  It seems to us that the applicant had been given warnings; he had not improved; he had not put forward cogent reasons why it was not possible for him to improve.  In the light of our conclusions on the evident, we cannot say no reasonable employer would have dismissed in these circumstances."

	Mr Mawhinney identified, by the use of a helpful skeleton argument, the three main points which he argued constituted errors of law on the part of the Tribunal.  The first was that the Tribunal found that Mr Adams was unable to do his job in the way it should be done.  But that conclusion was not supported by sufficient findings of fact.

	Secondly, the Tribunal failed to take into account, in deciding whether Litho had acted reasonably or unreasonably within the meaning of Section 57 (3) of the 1978 Act, procedural irregularities, which it found Litho had committed, in applying the disciplinary process.  Thirdly, the Tribunal wrongly found that the employers had behaved reasonably in treating Mr Adams' alleged inability as a sufficient reason for dismissing him.  In particular, the Tribunal had not stated the correct legal test for determining the reasonableness of the dismissal.

	Mr Mawhinney took us through the history of the matter from early March 1991, through to dismissal on the 15 May 1992, with the history of criticisms by the employers, the issuing of verbal warnings and final written warnings, which had been taken account by Litho in deciding to dismiss Mr Adams.  There is no attack on this decision on grounds of perversity.  It is not argued that the decision is one which no reasonable Tribunal would have come to on the evidence before it.  The criticisms of the decision are more specific.  It is important to bear in mind on any appeal to this Tribunal that the Tribunal can only entertain an appeal on a question of law.  Questions of fact are for the Tribunal alone, unless this Tribunal is satisfied that the conclusion has been reached contrary to uncontradicted evidence or unsupported by any evidence.  

	We deal briefly with each of the three grounds which Mr Mawhinney explained with commendable clarity.  The first ground is the absence of findings sufficient to justify the conclusion that Mr Adams was unable to do his job.  

	In our view, there is no error of law in the way in which the Tribunal dealt with this question.  The crucial part of the decision on this is in paragraph 16 where the Tribunal said:

		"...... overall we are satisfied that the respondent had reasonably concluded, over the course of the applicant's service and particularly since the Autumn of 1991 that for whatever reason the applicant was unable to do his job in the way it should be done".

	It was not the task of the Tribunal to decide whether Mr Adams was unable or not to do his job as it should have been done.  The issue for the Tribunal, as Mr Mawhinney accepted, was whether the employers reasonably concluded in all circumstances that Mr Adams was unable to do his job.  In those circumstances it was not for the Tribunal to become involved in making detailed findings of fact as to Mr Adams' job performance.  The focus of the Tribunal was rightly on the question whether the employers reasonably concluded that Mr Adams was unable to do his job.

	In those circumstances it was not necessary for the Tribunal to make detailed findings of fact about the inability to do the job.  The Tribunal set out sufficient for the purposes of supporting their conclusion the history of the steps taken by Litho to make their criticisms of Mr Adams job performance known to him in a series of meetings and warnings.    

	As a sub point, Mr Mawhinney contended that Litho had taken into account the various warnings which had been given, but at no point in the decision of the Tribunal, had the Tribunal decided, as a matter of fact, whether the giving of the warnings were justified on each of the occasions when they were given.  Again in our view this is a misunderstanding of the function of the Tribunal.  It was not for the Tribunal to enter into a detailed factual dispute as to that question.  If, we would add, there was such a question, it does not appear from the papers before us that a point was clearly taken by Mr Adams, either when the warnings were given or when this matter was before the Industrial Tribunal, that the warnings were issued in circumstances which did not justify them.  It was a correct decision of the Tribunal to say, as they did in paragraph 18 of the decision, that by the time the final written warning was issued to Mr Adams, he was well aware of what the criticisms of him were and of the case he had to meet.  

	The Tribunal were entitled to take the view that Litho had formed a reasonable conclusion about his job performance on the basis of criticisms made known to Mr Adams, so that he was in a position to know what he had to do in order to satisfy his employers.

	On the second point we can be more brief.  The Tribunal found that there were procedural irregularities.  Mr Mawhinney's criticism is that the Tribunal failed properly to take into account, under Section 57 (3) the procedural irregularities in the application of the disciplinary process.  Mr Mawhinney set out the various procedural irregularities in relation to breaches of ACAS guidelines regarding the first and second verbal warnings and in the first and second final warnings.

	The Tribunal did take full account of these criticisms.  They made criticisms themselves.  In paragraph 17 they thought that most of the criticisms, made by Mr Adams at the disciplinary procedure were justified.  But when it came to making its decision the Tribunal stated that it was not satisfied that the defects in the procedure were so serious as to render the dismissal unfair.  Mr Mawhinney's criticism was that the correct approach would have been for the Tribunal to look at the procedural irregularities along with other matters to be weighed in the balance.  Instead, they had taken an erroneous approach in looking at the procedural irregularities and asking whether, on the basis of those alone, the decision became unfair, and then decided that they were not.

	In our view, there is no mis-direction in law by the Tribunal on this point.  They took proper account of the defects, and decided that they did not have the effect of rendering the dismissal unfair.

	The third and final point was that the Tribunal had erred in law in finding that Litho had acted reasonably in treating Mr Adams' alleged inability as a sufficient reason for dismissing him.  The main criticism was that the Tribunal had not correctly worded the question that they should answer.  In the part of the final paragraph which I have quoted, the Tribunal echoing the words of Counsel for Litho, said that the question was, can we say no reasonable employer would have dismissed this employee in these circumstances.  The Tribunal answered that question by saying that they could not say no reasonable employer would have dismissed in these circumstances.  The criticism Mr Mawhinney made of this part of the decision was that the Tribunal had erroneously substituted their own test for the correct test, stated in Section 57 (3) of the Act, and in the decisions on that section.  

	He referred us to a passage in the decision of this Tribunal in N C Watling & Co. Ltd v Richardson [1978] IRLR 255 for the proposition described in paragraph 18 of the decision, that the lesson for Tribunals is that they should apply the test provided for by the section and not use other phrases which were differently worded.  

	There might be some substance in this point if we were satisfied that a Tribunal had seriously misled itself by the different wording of the test into an erroneous approach.  The main lesson to be learned is from the case of Watling v Richardson and from the later cases such as Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 is that the Tribunal, in applying Section 57 (3), must not fall into the trap of substituting its own subjective collective wisdom for that of the standard of the reasonable employer.  The important point is that the test is an objective one, how a reasonable employer would have behaved in those circumstances.  While it is preferable for Industrial Tribunals' to follow the wording of the Act, and in applying the wording of the Act, to follow the guidance of Mr Justice Browne-Wilkinson in Iceland Frozen Foods case, which emphasises objectively at all stages of the process, we are satisfied that the Tribunal in this case has not, in its rephrased question, misdirected itself into adopting an erroneous approach to the question of the reasonableness of the dismissal.

	An objective test was applied.  The result was that the Tribunal concluded that this dismissal was fair.  In those circumstances this appeal will be dismissed.