Appeal No. EAT/662/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6th June 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR D G DAVIES

	MR K M HACK JP

MR J G WILLIAMS	APPELLANT

SECRETARY OF STATE FOR EMPLOYMENT	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J WILLIAMS
(The Appellant in person)

For the Respondents	LORD J MESTON
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS

	MR JUSTICE TUCKER:   This is an employees appeal against a decision of the Industrial Tribunal sitting at Exeter on 29th June and 2nd July 1993. Whereby although finding that the appellant was unfairly dismissed, the Tribunal found that having regard to compensation previously awarded by Civil Service Appeal Board no further compensation was ordered. No order was made for re-instatement or re-engagement.

	The grounds of appeal are that there was an error of law in that the Tribunal misunderstood a major relevant fact of the case.

	The appellant claimed that he had been unfairly dismissed by the respondents, the Department of Employment, by whom he had been employed as an administrative officer in one of their benefit offices in Plymouth.

	In his form IT1, he claimed re-instatement. He did not at that stage claim compensation, though he subsequently did so.

	The respondents in due course conceded that the dismissal was unfair. They were not prepared to consider re-instatement. 

	Accordingly the issue before the Industrial Tribunal was compensation. As they stated in paragraph 4 and again in paragraph 28 of their decision:

		"... that required an assessment of what would have happened had there been no dismissal."

	In our view, the Tribunal clearly identified the issue which they had to determine, and went on to address themselves to that problem.
	The appellant began work for the department on 25th March 1985, when he was aged 22. He was dismissed by letter dated 28th January 1991 on the grounds of inefficiency. He was paid the sum of £8,671.00 per annum gross in wages, which from 1st February 1991 rose to the sum of £9,278.00 per annum gross.

	The appellant emphasises that he was dismissed on grounds of inefficiency, that is to say, conduct as opposed to absence on the ground of sickness. In that he is undoubtedly correct though sickness may have had some bearing on the matter.

	The appellant's further submission is that the medical evidence was relevant only in so far as it provided an opinion as to the likelihood of future good service in terms of conduct, and of the likely effect of the state of his health upon that conduct.

	He submits that a letter from Dr Richard Watkins of the Civil Service Occupational Health Service dated 24th December 1992 is misguided in that it contains a reference to sickness rather than to conduct. We disagree with that. It is clear to us that Dr Watkins in that letter is referring to the appellant's pschycological problems and to the fact that because of the appellants inability to face up to them, no treatment could be offered, and that he was therefore unlikely to give regular and effective service. The clear implication is that that is because his conduct would be thereby effected. The Tribunal clearly linked the appellant's conduct (or misconduct) with his pschycological problems.

	The appellant criticises the basis upon which the Tribunal concluded that his employment would not have lasted more than about six to eight months beyond the date of his actual dismissal, and consequently, the failure by the Tribunal to award him compensation beyond that awarded by the Civil Service Appeal Board.

	He submits that the Tribunal's decision was not reasoned out, that there was no evidence to support such a conclusion, that insufficient findings of fact were made upon which to reach it, and that insufficient reasons were given. It is doubtful whether any of these arguments amount to a point of law. The appellant expressly stated that he did not allege perversity on the part of the Tribunal, rather that the Tribunal misunderstood major relevant facts. 

	In any event, we disagree with the submissions. In our opinion, the Tribunal approached their task with great care and set out their reasons with clarity.

	The appellant took us at great length through his reasons for submitting that the Tribunal came to a wrong conclusion, that his employment would not have lasted more than about six to eight months. When pressed as to the length that he put upon it, he suggested first of all eight months plus perhaps another six weeks, but put a ceiling upon it of two years.

	It is noteworthy that the Civil Service Appeal Board based their assessment of compensation on a total of nine months further employment with a deduction for contributory fault of 30%. The Tribunal would have deducted 50%, against which there is no appeal nor could there be, since it was a matter purely in the discretion of the Tribunal.

	The appellant has been much concerned to address us, and we have allowed him to do so, on the procedures which should have been followed and which would have had to be followed in order to dismiss him fairly after a re-instatement. He seems to be under the impression that he would have had to be dealt with, as if he were a newly appointed employee, and that the respondents would have had to comply with the rigid timetables and procedures which would have obtained in that situation.

	He is also concerned with whether he had attracted the appropriate box marking on his reports. But we remind ourselves that in examining the hypothetical situation neither we nor the Tribunal are or were concerned either with re-engagement nor with re-instatement, but with the assumption that there had been no dismissal at all and that the employment would have continued.

	The appellant seems to pre-suppose that there would have been re-instatement with a clean slate. But whether it would be described as re-instatement or a continuation of an unbroken contractual relationship, it is clear that it would not have taken place with a clean slate, but with a restoration of the status quo, assuming that there had been no dismissal. What would have happened in that event? 

	Both sides have drawn our attention to a letter from the Employer Service written by Mrs Pam Clark, the Regional Personnel Officer dated 19th September 1989. We bear in mind that that is some sixteen months before the actual date of the appellant's dismissal. In the second paragraph Mrs Clark says this:

		"As we know, for some time now, Mr Williams' performance, conduct, timekeeping and attendance have all given cause for concern."

		"He was given a Box 4 marking on the 1987/88 annual report - his planning, output and staff relationships being not fully up to requirements. The latest report (1988/89), although showing a further Box 4, reveals a serious deterioration as regards performance, behaviour/conduct and timekeeping. In these circumstances the latest Box 4 cannot be regarded as transitional and formal warning action must now be taken in accordance with Personnel Handbook Chapter 7."

That, we repeat was on 19th September 1989.

	We remind ourselves that the Tribunal was not concerned with the question, whether the dismissal was fair or unfair? That point had already been conceded. The hearing before the Tribunal was concerned solely with the question of remedies. So any questions relating to Box 4 or Box 5 markings or to compliance with procedures had no relevance as to the substance of the Tribunal's decision, but could be related only to determination of the length of the employment had their been no dismissal. That can only be conjectural. In deciding that point, the Tribunal were entitled to examine the appellants previous conduct, which they did in considerable detail as we see from their reasons. They considered the effect of his ill-health and pschycological make-up on his conduct. The Tribunal, in our opinion, took all relevant matters into account in deciding how long the employment would have lasted and their reasoning cannot be flawed. We see no error in law.

	It seems to us that the Civil Service Appeal Board awarded the appellant more than the Industrial Tribunal would have awarded, which the Tribunal themselves recognised.

	An additional ground of appeal was that the Tribunal misunderstood the compensation award of the board, in that the board itself erred in the calculation of the compensation. The total award made by the board was £7,333.52 which when reduced by 30% amounted to a net sum of £5,133.46. The Tribunal would have made a 50% reduction thereby reducing the sum to £3,666.00. 

	We are not in a position to interfere with the award made by the board. But even if they were in error, the maximum sum which they could have awarded at that time on a 100% basis, would have been £9,758.00 which would have been reduced by 30% to £6,831.00 and by 50% to £4,879.00. That is still less than the net sum of £5,133.46 which was awarded. And therefore, even if there was some error on the part of the board, which we by no means accept, it does not seem to us that any possible criticism can be made of the approach that the Tribunal made to the problem. And it is the Tribunal's approach not that of the board which is before us.

	We have listened to the appellants arguments, some of which have not been easy to follow. He is clearly convinced that he has suffered some injustice in the award of compensation, though he is quite unable to quantify the amount by which he claims to have suffered. However, he has utterly failed to show us that there was any error in the Tribunal's reasoning or to persuade us that any injustice occurred. It seems to us that he was very fairly dealt with and that he should have nothing to complain about.

	The appeal is accordingly dismissed.