Appeal No.	 EAT/25/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
LORD GLADWIN OF CLEE CBE JP
MR D J HODGKINS CB

MR D KAPADIYA	APPELLANT

NEW INDIA ASSURANCE CO LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR A BUTLER
(of Counsel)
Messrs Dalton Barrett
Solicitors
50 Britton Street
London
EC1M 5NA	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law on an appeal against a decision of an Industrial Tribunal following a hearing at Stratford on 10th July 1996. The decision was reduced to writing and was sent to the parties on 15th November 1996. By it, the unanimous decision of the Industrial Tribunal was that the dismissal of the applicant was fair; and that his claims for wages allegedly due and for unpaid bonus were to be dismissed.

	The Notice of Appeal in this case was originally filed by the individual applicant himself, Mr Kapadiya, and it is none the worse for that. In his original Notice of Appeal he took a number of different points. He said, firstly, that the evidence presented against him was untrue. He said that the documents which were received in evidence were inadmissible, and had been manufactured, and he said that there was inadmissible hearsay evidence from witnesses which was admitted, and that the evidence was untrue.

	The Notice of Appeal has been significantly amended as a result of Mr Kapadiya receiving assistance from Counsel. Mr Butler has effectively addressed us on the new Notice of Appeal saying that there are arguable points of law.

	We have come to the conclusion, having heard those submissions, for reasons which I will explain in a moment, that there are no arguable points of law in this appeal, and that really what Mr Kapadiya had been seeking to achieve, as evidenced by his first Notice of Appeal, was a rehearing on the merits of the case. Mr Butler’s submissions, needless to say, were more sophisticated as the amended Notice of Appeal and skeleton argument disclose.

	Before considering it, I should deal with the decision of the Industrial Tribunal itself and summarise it.

	Mr Kapadiya was employed by the respondent company, New India Assurance Co. Ltd, from 2nd January 1991 until his dismissal on 16th November 1995. He was employed in the position of administrator, the respondent company being the largest insurance company in India with a small London office. There were only nine employees working at the London office at the time. The events which gave rise to the dismissal are catalogued in the Industrial Tribunal decision.

	He was given a warning letter on 11th November 1994 that disciplinary action would be taken against him if his behaviour towards other staff did not improve. That arose from the Chief Manager’s view about what is described in the decision as Mr Kapadiya’s attitude to his work and to staff which was causing difficulties. 

	The second relevant incident is that on 11th July, following an absence, a letter was sent to Mr Kapadiya by Mr Narain by recorded delivery complaining of his failure to report absences and warning him  that “such lapses will be viewed seriously”. That letter was followed three days later by a further letter in which he was advised to attend to his work which was seriously in arrears and he was asked to work sincerely.

	On 15th August 1995 the Chief Manager again wrote to the applicant. He drew attention in that letter to the applicant’s alleged failure to attend regularly. It appeared that he had been absent since June for 10 days without pay. The letter drew attention to the applicant’s alleged failure to notify the office of absences, and to the fact that the work assigned to him could not be kept up to date. The letter concluded by stating that it was a final warning to the applicant to notify promptly his employer of absences and that failure to comply with normal procedures would result in his dismissal.

	It was the employer’s evidence which was ultimately accepted by the Industrial Tribunal, that alone amongst the employees, the applicant often did not inform the office of sickness and the office had to contact him to find out whether or not he was sick, and that his work was falling into arrears.

	Finally, on 16th November, Mr Narain called him in for a meeting. The initial purpose of the meeting was not to dismiss the applicant, but rather to try and persuade the applicant to work diligently and not insist on raking up the past. Assurances were sought from him as to his future conduct. They were not given. Accordingly Mr Narain then reached the view that the applicant’s employment had to be terminated.

	The submissions which the applicant made to the Industrial Tribunal were that the allegations against him were vague; that he had complied with office procedures; that there was no serious misconduct on his part, and that his dismissal was unfair.

	The employers, through their representative, argued that the dismissal was due to the applicant’s conduct and capability; he had received warnings; the frequency of his absences inevitably caused difficulties in a small office, and that looking at the case in the round, the respondents had acted reasonably in dismissing him.

	The Industrial Tribunal indicated first of all that they preferred the evidence of the employers to that of the applicant. They rejected an allegation that a particular document was a fabrication. They accepted that he had been warned in writing on a number of occasions. They said that those letters concerned his conduct towards other staff, his arrears of work, his failure to notify absences on account of sickness and the number of sick absences. They refer to the final warning sent on 15th August 1995 and they accepted that there were, in addition, oral discussion between Mr Narain and another manager and Mr Kapadiya, to try to help Mr Kapadiya with various personal problems.

	They concluded that the reason for the dismissal was one which fell within s. 57 of the old 1978 Act, namely conduct. They then turned their attention to the question as to whether it was within the band of reasonable responses to treat that as a sufficient reason for dismissal, having regard to equity and justice and the merits of the case, and having regard to the way in which the procedures were operated.

	The tribunal took into account that it was a very small office; that his absences meant that others had to do his work, and that his failure to notify his absence must have been particularly disruptive. They accepted that his absences affected his ability to do his work. They considered that it would have been unreasonable to expect the employers to tolerate the position indefinitely. It considered very carefully the interview of 16th November and was concerned about it. The tribunal concluded:

“28. ... Nevertheless, it concluded that Mr Narain, faced with the refusal of the Applicant to give any assurances as to his future conduct, was justified in his decision to dismiss him. It unanimously found, therefore, that the dismissal was fair.”

	The more elaborate Notice of Appeal suggests that the Industrial Tribunal have erred in law in the way they dealt with the reason for the dismissal; and the approach of the Industrial Tribunal to the questions of fairness.

	In relation to the reason for the dismissal, Counsel submitted that it would not a question of misconduct if there was a genuine illness which prevented him from coming into work; that a reasonable employer should have organised some kind of medical examination; that it was never suggested to the applicant at any stage that he was swinging the lead in relation to his days of sickness, and therefore it would be unfair to dismiss for that reason. Accordingly the final warning given on 15th August which concentrated on the absences on account of sickness and on the failure to notify them, was not something which related to conduct, although it may have related to his health. Mr Butler also submitted that there was no other evidence of difficulty of work relationships with staff than that contained in the first warning that was given in 1994. He submitted that if one looked at what happened in terms of the procedure for the dismissal, it offended against what he described as the rules of natural justice because the applicant was never given notice of the allegations that had been made against him; he was not given an opportunity of considering them in advance, of having a representative or friend present, or time to deal with them. It was said that in relation to his interview in November, it was particularly unfair because English is the applicant’s second language, Hindi or Gujarati being his first language.

	We reject those submissions. It seems to us that the Industrial Tribunal has correctly approached the task which it was set by Parliament. It has had to ask itself firstly, what was the reason for the dismissal. It has carefully analysed the evidence, and has come to the conclusion, on balance, that the reason should be categorised as conduct. It might have been categorised as conduct and/or capability, but it seems to us that the real question in this case was having regard to the perception of the employee’s behaviour, could an employer fairly have treated that as sufficient to dismiss and did they set about it in a way which was fair.

	It seems to us that those were essentially questions for the industrial jury. They were best placed to make these decisions. They saw and heard the witnesses. They have read the documents, and they have had the opportunity to make the sort of assessment that is required when reaching a judgment on that question.

	We therefore are satisfied that there is nothing on the face of this decision which suggests either an error in the approach of the Industrial Tribunal to the questions before it, or in their determination of the issues on the basis of the material before them. Therefore we dismiss the appeal in relation to unfair dismissal.

	In relation to the two contract claims, that is claims in relation to unlawful deductions from his wages, the matter is dealt with at paragraphs 10 and 11 of the Industrial Tribunal decision, and again, the conclusion of the Industrial Tribunal is set out in paragraphs 29 and 30. 

	It seems to us that the proposition which Counsel has advanced that the Industrial Tribunal have been guilty of manifest error of law in relation to a pay increase is unsustainable. What the tribunal said was that it was clear from the correspondence that there never was an unconditional agreement to pay this increment, therefore the applicant was not entitled to it. Counsel says that shows that they have misunderstood the law, because they have not asked themselves the question as to whether the condition was fulfilled. As we read the decision of the Industrial Tribunal, it is plain that what they are saying is that there was no present contractual entitlement to an increase in wages because any alleged agreement was in conditional form and did not give rise to a present entitlement. That was a conclusion which on its face is sustainable, and paragraph 10 indicates the way in which that position was arrived that.

	In relation to the bonus, again it seems to us that the question as to the entitlement to the bonus was one for the Industrial Tribunal to consider on the material  before them. Having regard to what was said in paragraph 11, it seems to us that their conclusion cannot be faulted.

	Accordingly, despite the able way in which the submissions have been made to us on Mr Kapadiya’s behalf, we are bound to say that in this case we are satisfied that there is no point of law which is arguable or fit for hearing before us at a later stage. Accordingly, the appeal will be dismissed.

	We have been asked for leave to appeal. That application is refused. It seems to us, for the reasons I have given, that there is no arguable point of law raised against the decision of the Industrial Tribunal. Their decision seems to us to be one which fell within the margin of appreciation that must be accorded to a fact finding tribunal. Accordingly we refuse leave. We do not consider that there is any point fit for hearing before the Court of Appeal.