Appeal No. EAT/35/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 June 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
LORD DAVIES OF COITY CBE
MRS R A VICKERS

MR S O ABIOLA	APPELLANT

COMET GROUP PLC & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C HAY
(Lay Representative)
Northern Complainant Aid Fund
Midlands Unit
70 Villa Road
Handsworth
Birmingham B19 1BL	

MR JUSTICE LINDSAY (PRESIDENT)

1.	We have before us as a preliminary hearing the appeal of Mr S O Abiola in the matter Abiola v (1) Comet Group plc, (2) Lorraine Craven, (3) Simon Rigby, (4) Tony McAlpine and (5) Helen Adams.  Mr Abiola has appeared today by Mr Courtney Hay.

2.	Between 20 December 1998 and 22 November 1999 Mr Abiola presented no fewer than five IT1s by which, lumping them together, he claimed one or more of race discrimination, victimisation, breach of contract and unfair dismissal against the respondents that we have just named.  Of course, so far as concerned unfair dismissal, it was merely against the employer, Comet.  The individuals there named were all colleagues of Mr Abiola, fellow employees at Comet.

3.	Between 4 and 8 September 2000 there was a hearing spread over five days at the Employment Tribunal followed by the Tribunal meeting in private on 2 October.  On 7 November 2000 the decision, which was the decision of the Tribunal at Birmingham under the Chairmanship of Mr A J McCarry, sent its decision to the parties.  It was:

“The unanimous decision of the Tribunal is that the applicant’s claims fail and they are dismissed.”

By then the respondents had been whittled down to Comet plus Craven, Rigby, McAlpine and Adams.  At earlier stages the respondents had been McCarthy, Bowling, Lousada, Adams, Craven, Carrington, Rigby and McAlpine.  

4.	The Extended Reasons are long.  The typing spreads over some 16 pages.  It is impossible, in our view, on a first reading, to form a tentative view other than that it is a balanced and careful assessment of the complaints which Mr Abiola had raised.  But that, of course, is not to say that within it there is no error of law which, of course, is what the Employment Appeal Tribunal has to consider.  Today we have had to consider whether Mr Hay has been able to assert any arguable error of law in the Notice of Appeal which was received by the Employment Tribunal on 19 December 2000 and which has been amplified by a skeleton argument and by Mr Hay orally.

5.	The complaint in the Notice of Appeal and amplified orally is that the appellant, having been issued with a first written warning in April 1999, was then dismissed in June 1999 without any further misconduct on his behalf.  There were no exceptional circumstances justifying the move, says Mr Hay, from one of those stages direct to the other and the Employment Tribunal failed adequately to take account of the absence of exceptional circumstances justifying such a direct move and thereby erred in law.  In the most brutal summary of the case, Mr Hay says that what was happening was that Mr Abiola was being disciplined twice for the earlier offence.  He has drawn our attention to Polkey v A E Dayton Services HL at 1998 ICR 142.  In Polkey, speaking not of a company’s own contractual or other procedural code but of the statutory code, Lord Mackay, at page 153 said:

“If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code.  Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair.  Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.”

Such or like considerations could, we think apply, not just to the statutory code but to the procedural code which a company of some size is likely to have.  Lord Bridge’s speech was also referred to; in fact Mr Hay only referred to Lord Bridge’s speech but we have thought it right to draw attention to what Lord Mackay says as well.  Lord Bridge has a passage - as it is relatively late I will not take up time reading all of it - from page 162 just above F to 163 just below C but I read in particular the last passage:

“It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view, that in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.  In such a case the test for reasonableness under section 57(3) may be satisfied.”

And it is that reference to exceptional circumstances that Mr Hay’s argument has had in mind.

6.	In Mr Abiola’s case the written warning was in early April 1999.  It was far from being in respect of the first difficulty that had arisen between employer and employee.  There was a spell earlier when Mr Abiola would communicate only in writing by memorandum.  A genuine belief had come into existence on his employer’s part that he would never measure up to his current job (see the Employment Tribunal 2.10).  Mr Abiola was acting on the basis of a view that all were in a vendetta against him (2.12).  His performance was well behind his targets, which were, in any event, merely minimum standards (2.21).  A disciplinary hearing had been convened as early as 8 October 1998 (2.21), although those proceedings were later dropped (2.28).  Steps had been taken to “clear the air” (2.31) but to no lasting effect (2.32).  Mr Abiola was having trouble complying with his job description (2.32.4).  His attendance at work had become sporadic (2.34).  Contact between him and his immediate line manager, Mr McAlpine, reverted to being only in writing (2.34).  The stage was arrived at at which he said he had enemies, even though there were none.  The Tribunal said:

“The applicant’s attitude towards the first respondents at that time can be seen from Page 214/215.  He had previously requested counselling and, in a genuine attempt to assist him they now offered it, but he demanded to know from them why they thought he needed counselling.  It is clear that, by this time, everything the company did was interpreted by the applicant in a sinister fashion and used against them.  The applicant castigated the respondent’s Equal Opportunities Officer in a similar fashion.”  

7.	He had by now issued two sets of IT1s.  There was a disciplinary hearing and the Tribunal says:

“During the disciplinary hearing, the applicant endeavoured to skirt around the issues, making a number of points which really amounted to diverting attention to other matters.  It does not surprise us that a first written warning was issued in respect of his unauthorised absence and failure to maintain standards or performance.  This was confirmed at Page 276.”

8.	Mr Abiola appealed by way of internal appeal, as to which the Tribunal said this:

“The applicant’s reasons for appeal are instructive.  He felt that his manager was not justified in his complaints, not managing him properly and not giving him useful instructions.  It was in much the same way that the applicant presented his case before us.  On 2 June, Mr Lousada wrote to the applicant (Page 323); it was his view that the applicant was unable to separate in his own mind the employment tribunal proceedings and the disciplinary process, which he merely saw as a further event in a continuing process.  The applicant’s problems arose, in his opinion, from the lack of communication between the applicant and his manager and his lack of respect for his manager’s instructions, which he was allowing to affect his judgement on such things as his attendance at stores.  Similarly, whilst understanding the requirements of him in relation to questionnaires, his feeling that they were not the best use of his time meant he did not do what he was tasked to do.  Mr Lousada pointed out that it was not for the applicant to dictate where priorities lay and he must obey reasonable instructions.  That is a view from which we could not dissent.  He refused the appeal and addressed his concerns about the relationship between the applicant and Mr McAlpine to Human Resources, stating his ‘serious concerns about the ongoing situation.’”

The decision was then taken to move Mr McAlpine and Mr Abiola apart.  The Tribunal said:

“It had been concluded that Mr McAlpine and the applicant would have to be moved out of a direct relationship with one another.  Because more senior management felt that Mr McAlpine’s approach to the job was the correct one and his requirements of the applicant reasonable, it would be right for the applicant to move as similar problems were likely to be experienced with any manager following the same line.  He was given the opportunity of obtaining a suitable position within a reasonable time, otherwise his employment would come to an end.”

	However, unfortunately, a meeting proved unhelpful.  The Tribunal said:

“Ms Craven (that is the Human Resources side) arranged a meeting between the applicant and Mr Rigby, accompanied by herself, to consider the possibilities of redeployment.  This took place on 23 June (Page 339) but the applicant refused to contribute to the meeting.  He said he had come only to listen.  This only served to underline to Mr Rigby and Ms Craven the problems with the applicant and his apparently irreconcilable differences with the company.”

Accordingly, the company formed a view which the Tribunal describes as follows:

“On 29 June (page 346), Ms Craven wrote to record the company’s view that it felt the applicant had withdrawn all co-operation, having closed his mind to the possibility that he might be wrong; this made it impossible to manage his services and he would be suspended until he could be found an alternative position.  If this was not possible, his employment would be terminated ‘as a result of the fundamental breakdown of trust and confidence between you and management.’”

Mr Abiola did accept that an alternative position for him was a plausible solution and he did apply for some of the jobs in the company but not for ones for which he had relevant experience and accordingly he was given notice.  The Tribunal said:

“We accept the evidence of the first respondent’s witnesses that the applicant had no relevant experience for the fairly senior jobs for which he applied.  Eventually, when the applicant had secured no other employment by 16 August and there were no immediate prospects of his doing so, Mr Rigby confirmed that his employment would end with effect from 16 September, after expiry of his contractual notice.”

9.	An internal appeal was held and the company held that there had been a breakdown in the working relationship and the Tribunal said of that in an important phrase:

“We agree with Mr Lousada [and pausing there, that indicates that Mr Lousada had given evidence to a particular effect and that the Tribunal heard that evidence] that, by the time he was asked to hear the disciplinary appeal, the applicant had become unmanageable, certainly in the department in which he was employed.”

And in their paragraph 4.7 the Tribunal says:

“We are satisfied for the purposes of section 98(1) and (2) Employment Rights Act 1996 that the sole reason for the applicant’s dismissal was a breakdown in the working relationship between the applicant and his manager and, indeed, between the applicant and almost everyone with whom he had been associated within the company in the last few months prior to dismissal.”

Importantly, the Tribunal continues as follows at 4.9:

“It is our view that Mr Lousada reasonably concluded [and so again that suggests that they had heard evidence from Mr Lousada] that the situation was hopeless.  In fact, with the benefit of hindsight no doubt, we think that could have been said at the time of the earlier disciplinary proceedings in October 1998 but it was more definitely apparent by the summer of 1999.  We also think that it was a reasonable conclusion by Lorraine Craven that the applicant would have to be moved, for the reasons expressed in her letter to the applicant at Page 326 of the bundle of documents.  Whilst there was not a separate disciplinary meeting concerning the applicant’s unmanageability, the problems had been sufficiently discussed for the company to take a reasonable view of the situation and we do not think it was unreasonable not to convene a further meeting to discuss the applicant’s attitude.”

A little later:

“We accept that there was no compulsion to make a job for the applicant, nor to keep him on the payroll doing nothing until a suitable alternative could be found.  Their [that is to say the respondent company’s] obligation was to undertake reasonable efforts to find alternative work.  We believe they discharged that duty.”

And finally:

“Our overall conclusion, however, is that the first respondents acted reasonably and fairly in deciding to terminate the applicant’s employment.”

10.	In upholding Mr Lousada’s views, arrived at after the written warning, that Mr Abiola had become unmanageable, certainly in the department in which he was then employed and that Mr Lousada had reasonably concluded that the situation was hopeless, the Employment Tribunal was, although in slightly different language, describing the very position in which the company had reasonably concluded that there were indeed exceptional circumstances and that they were such that further ordinary procedural steps were futile or utterly useless, to use the words which were used in the House of Lords in Polkey.  “Hopeless” was the word used in this particular case but the effect was surely the same as the words “futile” and “utterly useless” suggested in the House of Lords decision in Polkey.

11.	Accordingly, in our view, within the parameters opened by Polkey, the dismissal could, without error of law, have been found reasonable, notwithstanding that no formal disciplinary stage occurred subsequent to the first written warning and notwithstanding that nothing clearly identified in the disciplinary proceedings as misconduct on Mr Abiola’s part did occur after the first written warning.  The man had become unmanageable and it was hopeless not to do other than as the employer here elected to do.  All in all, we have been able to see no error of law, even an arguable error of law, in the Employment Tribunal’s Extended Reasons.  We confirm the tentative view with which we started, that they appeared to be scrupulously careful and, having found no arguable error of law, we must dismiss the appeal even at this preliminary stage.