Appeal No.	 EAT/1022/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 1999

Before
HIS HONOUR JUDGE D M LEVY QC
DR D GRIEVES CBE
MR G H WRIGHT MBE

MRS D J DES MOULINS	APPELLANT

AGE CONCERN HOVE & PORTSLADE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S BELLM
(Solicitor)
Messrs Donne Mileham & Haddock
Solicitors
100 Queens Road
Brighton
E Sussex BN1 3YB	
For the Respondents
	MR C J ROSEWEIR
(Representative)
Age Concern England
Astral House
1268 London Road
London SW16 4ER	

	JUDGE D M LEVY:		In this appeal by Mrs Des Moulins against the Age Concern Hove & Portslade, Mr Bellm appears for the Appellant as he did before the Employment Tribunal sitting at Brighton, whose decision is the subject of appeal. Mr Clifford Roseweir appears for the Respondent, a branch of the Charity Age Concern England.  Before we come to the merits of the appeal, there are a couple of errors on the face of the reserved decision of the Employment Tribunal which was communicated to the parties on 22 June 1998 to which we draw attention.  

	On the face of the document, the hearing took place at Brighton on 5 June 1998.  Mr Bellm who appeared below, tells us that his recollection is that there were two hearing days of the application and that on 5 June 1998, there was a consultation day among the members.  The other point slight correction is needed is the finding in paragraph 10(z) of the Extended Reasons that the employment of the Applicant, “..... as Director would be terminated as from 26th September 1998.” That is obviously a slip for 1997.

	We now turn to the matter which brings this appeal to this Tribunal.  The Applicant had been the successful Director of the Respondent from 18 March 1991 to 26 September 1997.  She had successfully turned the deficit in the Respondent’s financial position but, as sometimes happens, there was a class of personalities between her and some of the employees of the staff of the Respondent under her control.

	One employee Mr Peter Chandler, had written to the Chairman of the Governors complaining about the Appellant on 22 June 1997.  The attack on her contained in his complaint shocked the Appellant, particularly as she perceived it might have had some support from a member of the Management committee.  In due course Mr Chandler started grievance procedures which were dismissed when he failed to attend at the hearing.  As a result of subsequent events, the Appellant herself threatened to invoke the Respondent’s grievance procedures.  That threat resulted in an extraordinary meeting of the Management Committee of the Respondent being held on 15 August 1997.  That meeting determined to instigate disciplinary proceedings against the Appellant which might lead to dismissal.  After events summarised in the Extended Reasons, in the weeks following that decision, at a further Management Committee meeting held on 18 September 1997, a decision was taken to dismiss the Appellant from 26 September 1997.  Not unnaturally, after dismissal on that date, the Appellant made a complaint to an Employment Tribunal.  Her IT1 was received by the Tribunal on 18 November 1997.  The Charity’s response was dated 17 December 1997.  There was a hearing, on the date already recited.

	In a long and relatively careful judgment, the Tribunal came to conclusions.  It was admitted at the start of the hearing that the manner of the Appellants dismissal was unfair.  Therefore the issue which the Tribunal had to decide was the quantum of compensation.  The Tribunal in its judgment went to some length to examine matters in issue between the parties.  Having set out findings of facts and submission, in paragraph 10 they commenced to consider their conclusions.

	In paragraph 15 of the decision they say this:

“15.	In respect of the grievance in August 1997, we find that this grievance was not as stated initially by the Respondent, and repeated in the respondent’s submissions because of the proposed appraisal, but because of the respondent’s handling of the Chandler affair.   Mrs Thomas [the deputy chairman of the Management Committee] in her evidence confirmed this fact, and acknowledged that the [Appellant] was happy to have a performance appraisal.  In the light of our comments regarding the Chandler affair, we are satisfied that the facts justified the [Appellant] in raising a grievance, and find nothing in her action that could properly be described as being in any way inappropriate or blameworthy.  It is clear from the tone of the submissions which are as stated earlier consistent with the evidence and documents emanating from the Management Committee and many of its members, that they treated the invoking of the grievance against some or all members of the committee to be a personal insult that eroded the working relationship between the [Appellant] and the Management Committee, and prompted the hasty convening of the meeting on the 15th  August, that set in motion the investigation.”

	Having made further findings, the Tribunal reached this conclusion in paragraph 21:

“21.	We therefore conclude on the evidence adduced before us that the applicant’s dismissal was not caused or contributed to by any action on her part.”

	They then turned to consider what compensation should be awarded.  They note that what the Applicant sought was re-instatement but confirmed that in the circumstances of the breakdown of relationships that was not possible.  They considered whether if a dismissal would have followed a proper disciplinary hearing.  They referred to an observation of Browne-Wilkinson J, in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, approved in the well-known case of Polkey v AE Dayton [1988] ICR 142.  The dictum reads:

“There is no need for an ‘all or nothing’ decision.  If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.”

	(It must be remembered that Polkey was a decision largely concerned with redundancy.)  Having determined on their findings that they were unable to conclude that the Management Committee would either have dismissed or definitely retained, they concluded:

“Doing the best that we can, we assess the applicant’s chances of retaining her job at no more than 50%.”

	A compensatory award was then made with a 50% reduction to reflect the uncertainty. Mr Bellm submits the decision to make a 50% reduction was perverse for two reasons.  First he says it was inconsistent with the passages from the judgment to which we have already referred.  Secondly, he submits that it is illogical having regard to those earlier passages.  

	On behalf of the Respondent, Mr Roseweir refers us to s. 123 of the Employment Rights Act 1996, ss.1 and to ss.6, ss.1 reads:

“(1)	Subject to the provisions of this section and sections 124 and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

	And sub-section 6 reads:

“(6)	Where the tribunal finds, that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

	In our judgment Mr Bellm’s submissions that the decision of the Tribunal was illogical and inconsistent were both well founded. Where there have been findings as there have been (in particularly in paragraph 21 of the Extended Reasons) that the Applicant’s dismissal was not caused or contributed by any action on her part, it is strange for a Tribunal properly addressing itself to determine that they could not make up their minds whether a reasonable fair minded employer would have dismissed her or not.  To have assessed the changes of the Applicant retaining her job at no more than 50% appears to be a figure plucked from the air.

	Mr Roseweir referred us to a number of authorities.  One was that of James v Waltham Holy Cross UDC [1973] IRLR 202.  He took us to paragraph 22  of the judgment given by Sir John Donaldson:

“This duty of fairness both to the employer and to the business is only the general rule.  All else is better particular application of that general rule, thus in the field of conduct there are at least two types of cases in which it may be reasonably exceptional to dismiss without giving the employer an opportunity of offering an explanation.  The first is that in which the employer’s part of the conduct complained of states in terms why he is adopting that attitude if it is clear that this is the employee’s considered view and not merely the result of a passing a motion that could be no point in giving him an opportunity of restating a view of the expression of which lead to the decision to dismiss him, but even so an employer should be slow to conclude an opportunity to reflect and a subsequent opportunity to explain could in no circumstance produce a chain situation and dismissal would be unnecessary.  The second is that in which an employee’s conduct is of such a nature that whatever the explanations his continued employment is not in the interest of the business.  In such a case it is not unfair to dismiss him without giving the employer an opportunity for explanation although even in such a case many employers would rightly afford such an opportunity in order that the employee may have no possible excuse for feeling aggrieved.”

	That deals with conduct.  We see nothing in the conduct which has been set out in the Industrial Tribunal’s findings which would lead a fair employer to take the attitude that this employer apparently did.

	Anther paragraph of the judgment reads:

“In the field of capability simple problems frequently arise if an employee is not measuring up to the job, it may be because he is not exerting himself sufficiently or it may be because he really lacks capacity to do so.  An employer should be very slow to dismiss upon the ground that the employees are incapable of performing the work which he is employed to do without first telling the employer of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground and giving him an opportunity of improving his performance.  But those employed in senior management, may by the nature of their job be fully aware of what is required of them and fully capable of judging for themselves whether they are retrieving that requirement.  In such circumstances, the need for warning and an opportunity for improvement is much less apparent.  Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability.  In such circumstances, exceptional they no doubt are, a warning an opportunity for improvement are of no benefit to the employee and they constitute an unfair burden on the business.”

	Again in our judgment, in the context of the facts found by the Industrial Tribunal there was no irredeemable incapability in the Appellant such as to justify dismissal without any warning and the disciplinary procedure which would have followed.

	Both sides have suggested that it is not necessary for this matter to be returned to an Industrial Tribunal if, as we do, we consider that the decision of the Tribunal to make a 50% deduction was wrong.  In the light of the invitation of both parties to substitute such deduction as we feel is appropriate to replace that made by the Employment Tribunal, we conclude that on their findings of fact, it would be proper to make no deduction from the amount calculated by the Tribunal prior to making its 50% reduction.

	We therefore allow the appeal from the Award as calculated. We substitute an order of compensation with such adjustments as are necessary to remove the 50% deduction ordered by the Employment Tribunal.

	We would thank both representatives for the assistance they have given us today.