Appeal No. EAT/1173/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 May 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR D G DAVIES

	MR K M HACK JP

MR S D DURYSON	APPELLANT

DEPARTMENT OF TRADE AND INDUSTRY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON

	MR JUSTICE MUMMERY (PRESIDENT):   This is the Preliminary Hearing of an appeal by Mr S D Duryson against the decision of the Industrial Tribunal held at London (South) on 1 and 2 July 1991 and again (much later) on 22 August 1994.  The Tribunal heard a claim of unfair dismissal brought by Mr Duryson against the Department of Trade and Industry, for whom he worked as an Executive Officer, from August 1969 down to the termination of his employment in March 1990.  On 2 June 1990 he brought a claim for unfair dismissal from his position in the Disqualification Unit of the Insolvency Service of the Department.  He set out the basis of his claim in documents attached to the IT1.  The claim was resisted by the Department, who stated that the reason for dismissal was inefficiency.  The Department's case was that, following the receipt of an unsatisfactory Staff Appraisal report, Mr Duryson was placed on three months formal trial in accordance with departmental procedures.  At the end of the trial period, a further unsatisfactory report was submitted.  He was dismissed on 12 March.  The Department did not consider the dismissal to be unfair.

	At the hearing in July 1991, Mr Duryson was represented by his union representative, Mr Martin.  The Tribunal heard evidence and argument.  There was an adjournment of the hearing.  The decision of the Tribunal was that Mr Duryson was dismissed by reason of incapability.  The consequence was that his application failed.  He was disappointed with that result, notified to him in a set of Full Reasons on 15 October 1994.  He appealed.  His Notice of Appeal was served on 4 November.  He said in the grounds of appeal that a full document would be presented to the Employment Appeal Tribunal as soon as possible regarding his appeal.  That document has not been produced.  At the hearing today, Mr Duryson has attended in person.  He has explained in detail, with the assistance of some documents, why he contends that the decision dismissing his claim is legally incorrect.

	In order to test whether his arguments are sound, it is necessary to examine the Decision.  The Tribunal in the extended reasons referred to the circumstances of the hearing.  There were two days of evidence on 1 and 2 July 1991.  They heard evidence from a number of witnesses from the Department, including a Mr Margetts, Mr Williams, Mrs Whittle, Mr Bales, and Mr Sibley.  All those witnesses were cross-examined by Mr Martin on behalf of Mr Duryson.  They then heard his evidence.  The Tribunal broke off during the course of the second day to assess the evidence they had heard from the Department and formed a view at that stage about the outcome of the proceedings.  They said they were able to form this view after considering not only the evidence they had heard, but the many documents in the bundles which they had examined and in the light of the evidence Mr Duryson had given.  

	With good intentions, it appears that the Tribunal invited the parties' representatives to discuss whether an alternative solution could be found, which would be more compassionate for Mr Duryson than a finding of fair dismissal.  They indicated to the parties a clear view that they believed Mr Duryson's case that he had been unfairly dismissed was hopeless.  They wondered whether, within the Department, it might not be possible to find for Mr Duryson a significantly junior position as a gesture of compassion and goodwill.  It was made clear to the representatives that, on the evidence they had heard, they did not wish it to be felt by either party that Mr Duryson could believe that he was in a position to compel any kind of re-engagement order.

	The Tribunal set out in the reasons what subsequently happened or, more accurately, what subsequently did not happen.  The Tribunal did not receive any communication of any kind for a long period, from either Mr Duryson or his representative.  It is unfortunate, that this matter should have been allowed to continue for so long without being brought to a conclusion.  It had gone on so long that the Treasury Solicitor indicated at the beginning of 1994 that he had assumed that the proceedings were closed.  When the matter was restored, an application was made for the case to be struck out for want of prosecution.  The Tribunal did take into account Mr Duryson's attitude towards the proceedings, but they did not strike it out.  They came to a conclusion that there was, in this case, a fair dismissal.

	They set out in detail the evidence which they had heard and the conclusions they formed from it.  The essence of the conclusions was that they had heard a lot of evidence from the Department's witnesses as to problems that caused Mr Duryson to receive low box markings and appraisals.  Specific examples were given by Mr Marjetts.  They referred to efforts made by the Department to help Mr Duryson to get on top of his work load in an organised and efficient manner; they referred to documents which had passed between Mr Marjetts and Mr Duryson.  The Tribunal found that by March 1989 there were a whole variety of factors about which Mr Marjetts had genuine cause for concern.  They are fully set out in a memorandum.  On the closing page of the memorandum, Mr Duryson was given a clear warning that sustained improvement in his work over the following six weeks was necessary to avoid an overall box 5 marking.  Box 5 is the lowest marking.   The Tribunal accepted that unfortunately Mr Duryson was unable to meet the target set for him as to efficiency, system and practice.  The period September 1988 to 28 April 1989 resulted in a box 5 unacceptable marking. 

	 The Tribunal also dealt with supervision of Mr Duryson's work by other people; by Mrs Whittle, a Senior Examiner.  They accepted the evidence of Mrs Whittle that over the Christmas/New Year period, Mr Duryson never managed to achieve the goals clearly set out for him in the letter of 10 November 1989.  The work that Mr Duryson did was also monitored by a Mr Williams, who gave evidence.  He monitored it during the last few months.  His evidence, the Tribunal found, confirmed the evidence of Mrs Whittle; and added fact and detail in respect of other matters.  The Tribunal stated their conclusion in
paragraph 32:

	"Having considered all the evidence and documents before us we then applied our minds to whether first of all the Respondents had reasonable grounds for coming to the conclusion that the Applicant's work performance was short of the proper standard of an Executive Officer.  We find the evidence on that issue to be overwhelming."

In paragraph 33 they considered the question whether Mr Duryson had sufficient opportunity to prove himself and to react to warning and counselling.  Their conclusion on that was:

	"...the Applicant was given a very lengthy period of time in which to respond to warnings and on several occasions different members of the Respondent's management extended the "trial period" in question..."

The Tribunal finally considered in paragraph 35 whether dismissal was a reasonable response.  They said they had no doubt that the Department were entitled to reach the conclusion that Mr Duryson was incapable of continuing his duties as an Executive Officer.  The Tribunal asked whether the Department should have considered some kind of demotion.  They referred to the circumstances in which they had adjourned the matter in the hope that a junior position could be found for Mr Duryson.  Having considered that option and the opportunities which Mr Duryson was given to appeal in accordance with Civil Service procedures, the Tribunal came to the conclusion that all the procedures employed were fair and that in all the circumstances dismissal on the ground of capability was fair.  The application failed.

	Mr Duryson has explained to us in some detail the reasons why he regards this decision as incorrect in law.  He made three main points in his arguments.  The first point was that the Tribunal had ignored certain important matters.  A particular one that he concentrated on was that at the hearing his trade union representative, Mr Martin, had failed to mention or highlight a matter which he regarded as of great importance: that was that Mr Duryson believes there was a conspiracy of some kind between Mr Marjetts, his Manager, and Miss Orchard in the Personnel Office.  He relied in particular on a note sent by Mr Marjetts on 13 December 1988 to Miss Orchard saying:

	"I attach copies which highlight some recent shortcomings in Mr Duryson's work.  Is this the sort of evidence you require?  I will continue to minute Mr Duryson as and when problems arise."

Mr Duryson says that is evidence of a conspiracy.  It is evidence in support of his view that Mr Marjetts was bent on getting rid of him as he did not like him.  One of the reasons he thinks that is that there is no mention in this note of the positive points in Mr Duryson's work.  Our comment is that this is not a legal point: it is not an error in the decision.  If this was a matter relevant to the case and it had not been mentioned by Mr Martin in his capacity as trade union representative, that might amount to a misjudgement in the presentation of Mr Duryson's case by Mr Martin.  It would not amount to an error of law on the Tribunal.  A Tribunal is only bound to take into account the evidence of matters drawn to its attention.  If this was not drawn to the attention of the Tribunal and highlighted, the Tribunal cannot have been in error.  Even if this document had been highlighted by Mr Martin, we fail to see how it would have made any difference to the result, having regard to the date of the document and the findings of fact which the Tribunal made about what happened subsequent to December 1988 in relation to Mr Duryson's performance at work.

	The second point is a variation of the first: that Mr Marjetts did not like Mr Duryson.  He was bent on getting rid of him.  He gave him low box markings when he should have given him higher box markings.  Mr Duryson is firmly of the belief that this was the reason why he was dismissed.  As far as the Appeal Tribunal is concerned, there is nothing that can be done about this point at this stage.  It is a comment on the factual reason for dismissal.  The Tribunal found the facts.  They found the reason for dismissal was that, despite being given reasonable opportunities to do so, he was not able to improve his performance at work to the standards reasonably required by the Department.  Thirdly, he explained to us in detail why he considered that Mr Marjetts had done things in relation to the work which were inappropriate for a Civil Servant and were prejudicial to Mr Duryson.  He went into detail on a particular circumstance in which he said that, at Mr Marjetts request, he prepared a draft letter for his signature.  When he presented it to Mr Marjetts a line was drawn through it.  Mr Marjetts wrote one himself to the addressee and, as matters turned out, Mr Marjetts letter was a wrong form of letter, the one Mr Duryson had prepared was the right form of letter: a minute had been prepared by Mr Duryson on 29 June 1988 on this.  He explained why he said that Mr Duryson had behaved inappropriately.  He said he had altered the file beyond recognition.  That was a serious matter to alter a file in a Civil Service department.  This is not a point of law.  This is a point on the facts.  It relates to matters in 1988; the crucial findings of fact relate to what happened subsequently, after Mr Duryson had been given opportunities to improve the efficiency of his work output.

	Those are the main points.  We understand why Mr Duryson feels aggrieved about this matter.  It is a serious matter to lose your job.  Our powers are limited to appeals on legal points.  We are unable, as Mr Duryson accepted was the case, to find anything legally wrong in the extended reasons for the decision.  None of the points which Mr Duryson made arise out of the reasons given for the decision.  They arise out of factual matters, which were for the Tribunal to decide if they were put before them.  We have reached the conclusion that this appeal cannot proceed to a full hearing because the Notice of Appeal and Mr Duryson's arguments fail to reveal any arguable point of law.  We dismiss the appeal.