Appeal No. EAT/404/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 March 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR K HACK JP

	MS D WARWICK

MELTOG LTD	APPELLANTS

MR Y I JOGEE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T PITT-PAYNE
	(OF COUNSEL)
Engineering Employers
 Federation
Broadway House
Tothill Street
London SW1H 9NQ

For the Respondent	MR B CARR
	(OF COUNSEL)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
London SW19 1SE

	JUDGE HARGROVE OBE QC:  Mr Jogee was employed by the Appellants as a milling machine operator.  He was dismissed on 7 December 1990, it being alleged that he was incapable of working to an acceptable level of performance.  There had been a final warning giving him 6 weeks to reach an acceptable standard.  Problems became evident some time before with the start of a bonus scheme which was set up by an independent adviser.  Until that point there had been no major complaint about the Respondent's speed.  There was not then, or so far as one can see at any time, any complaint about the quality of his work.

	After a 10 week period the level for bonus pay was fixed at 70 p.i.  The Appellant expected operatives to reach that standard but the Respondent was managing only 45.  It is fair to point out that there were 17 other operators also below standard.  Counselling took place for 5 weeks, that is weeks 10 to 15.  Mr Jogee performed then at 75.  Once counselling stopped the Respondent's performance fell back.  Again it is fair to point out that there were peaks and troughs in his work.  At week 28 there was another review.  On this occasion there were 3 performers in the low category.  From weeks 10 to 28 Mr Jogee averaged 53.  The general average was 75.  He was asked for reasons for the low performance and he said times were too tight and he was not allowed enough time for the work.  No complaint was made then or at any time that the low level of performance was due to defective machinery.

	On 17 September the Respondent was given 6 weeks to reach 70 p.i.  Mr Beevis the foreman, gave him assistance.  He was advised about his performance weekly and he was also given fortnightly counselling.  By a letter of 24 September he was also warned of the danger of dismissal if those standards were not met.

	After the 6 week period the Respondent reached 60 p.i.  He appears to have been the one case who failed to reach an acceptable standard.  He was given another week.  He still could not reach the desired standard.  He was then given 5 weeks' notice.  There was a right of appeal which was exercised and that was unsuccessful.

	The Industrial Tribunal found that the decision was unfair.  The major area of the Reasons which seems to set out what the Tribunal believed was the basis of their decision, occurs at paragraph 19 which reads as follows:

"On the whole, mainly for these reasons, the applicant was working on an old machine on which he might find it difficult to improve to the required standard, but he was improving when dismissed, and had previously improved when effectively counselled, that he had been with the respondents for 5 years and there were no complaints about the quality of his work, and that the main reason for his low performance was said to be lack of confidence, which in our view could probably have been largely cured by further time, re-training and/or counselling, we feel that the applicant's dismissal was not a reasonable decision.  It is possible that Mr Jogee might still not have sufficiently improved to the required standard, but the fact is that the respondents have denied the applicant that chance, and we feel that a reasonable employer would not have done so.  For all those reasons, this tribunal finds that the applicant's complaint of unfair dismissal to be adjudged well founded, and therefore his complaint succeeds in that he was unfairly dismissed within the criteria of section 57."

	The Appellant says first that there was no evidence to support the finding that the age of the machine might have made difficulties for Mr Jogee to improve to the required standard.  The Respondent says that the Tribunal were speculating about why there were peaks and troughs and that there was in evidence which entitled them to take the view, particularly that in the account given by Mr Wells that the machine was 30 years old, that a new recruit was given a new machine and that Mr Jogee's machine is now spare.  

	We are of the view that the defectiveness of the machine formed a part of the judgment of the Tribunal.  There was no evidence to support it.  There have been no complaints by Mr Jogee about the machine and accordingly it was a perverse finding and displays the tendency of the Tribunal to substitute its own views for those of the dismissing employer.  Secondly it is said that there is no evidence that poor performance was attributable, or partly attributable for a lack of confidence that was curable given time, re-training and counselling.

	The Respondent has set forth very carefully in a Skeleton Argument a number of occasions upon which confidence or counselling are mentioned.  In our view whilst the Tribunal was perfectly entitled to form views about whether that evidence was evidence concerning whether counselling would be of assistance, what the Tribunal has done is to substitute once again it own view for that formed by the employer.  The reason that the Appellant put forward for dismissing him was inadequacy of performance.  The telling phrase which occurs in the Industrial Tribunal's findings was this:

"the main reason for his low performance was said to be lack of confidence which in our view could probably have been largely cured by further time, re-training and/or counselling, we feel that the applicant's dismissal was not a reasonable decision."

	When one links that with the final line of paragraph 18 which reads:

"Some might feel in those circumstances the dismissal to have been hasty."

it is again obvious that the Tribunal is putting its own views in place of those of the dismissing employer.

	Perhaps one of the more striking passages occurs at paragraph 17 in which once again the same defect seems to be occurring:

"We have to note that by their own standards the employers appear to have acted reasonably.  They gave the applicant a settling in period, when he was found to be below performance they gave him a counselling period of a further 5 weeks.  The success of that period might well have been borne in mind at a later stage.  However the applicant's performance did fall off and so he was put on a final warning period of 6 weeks.  When his performance was found to have improved, but not to the required standard, at the end of that 6 week period, the applicant was dismissed."

	When one contrasts that with the finding that the employer's view was unreasonable as set forth in paragraph 19, it seems to us that that confirms the indications given in the two previous passages that the Tribunal has indeed taken the wrong step upon its way towards a decision they are asked to make.  We remind ourselves that the classic area for setting out the questions which ought to be asks incurs in Iceland Frozen Foods v Jones [1983] ICR 17  at page 24 which succinctly states the law in the following terms:

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows:  (1) the starting point should always be the words of section 57(3) themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair:  if the dismissal falls outside the band it is unfair."

We regret to say that we do not consider that that test has been applied.  

	It is further maintained by the Appellant that in any event the decision is perverse.  Perversity is a free-standing basis for attack and we have reminded ourselves of the warnings given by the President of this Tribunal in East Berkshire  Health Authority v Matadeen [1992] IRLR 336, the passage in question being that which occurs at page 342:

"I have cautioned the members against interfering with decisions of Industrial Tribunals.  They cannot interfere merely because they disagree.  They cannot interfere even if they feel strongly that the result is unjust, though in this latter case it may be that on a careful analysis of the true reason lying behind such a view the decision flies in the face of properly informed logic."

	We have also reminded ourselves that this cannot have been an easy case for the Industrial Tribunal.  A number of matters were not explained as fully as would have been the case had there been legal representation on both sides.  It is also vital for any Appeal Court to remember that although the retrospectoscope produces infallible judgments on matters of fact, it is an instrument with many defects.  However we have read the judgment and reached the conclusion (and here I am greatly indebted to the Industrial Members of the Court), that the decision was not a permissible option and the conclusions reached by the Tribunal was one which no reasonable Tribunal could come to.  Here was an employee, not a new-comer but with 5 years experience who is asked to reach a standard which almost all his co-employees reach.  He is given a period of some 35 weeks to rectify his inadequacies.  Only when he is being aided by counselling and surveillance does he do so for any substantial period.  He is given a written warning.  All the procedures are carried out in accordance with the company's Code of Practice.  When he still does not raise his performance he is allowed yet another week.  The employers form the view that he would not improve.  That was an eminently reasonable decision for any employer to make and it was certainly within the band of reasonable responses.

	We need not catalogue all the other matters suffice it to say the Tribunal was faced with a compelling case which possibly out of sympathy with the Respondent they have misconstrued.  For these reasons we allow the appeal and substitute a decision that the dismissal was fair.