Appeal No. EAT/1154/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR L D COWAN
MISS A MADDOCKS OBE

MR R J CARTER	APPELLANT

DIMEX LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR W SADLER
(Representative)
Citizens Advice Bureau
Blagdon Road
New Malden
Surrey
KT3  4AF	

	MR JUSTICE LINDSAY:   We have before us an appeal by way of Preliminary Hearing in the matter R J Carter v Dimex Ltd.  The Appellant before us is Mr R J Carter who is represented by Mr Sadler of the Citizens Advice Bureau.

	There was a one day hearing in this matter before the Industrial Tribunal London (South), under the Chairmanship of Mr B Stanfield on 15 April 1997 and the Extended Reasons were promulgated to the parties on 29 July 1997.

	The decision of the Industrial Tribunal was unanimous that the Applicant, Mr Carter, had been fairly dismissed.  The nature of the claim that Mr Carter had raised below is described in the first paragraph of the Extended Reasons:
“The Applicant’s claim is for unfair dismissal.  He did not accept that he was dismissed for reasons of capacity, i.e. not fulfilling the targets set by his sales management, but considered that the Respondent wished to terminate his employment but did not wish to pay him a redundancy payment.”

	The Industrial Tribunal’s findings at paragraph 14 state:
(i)	The effective date of termination of the Applicant’s employment was 20 November 1966.
(ii)	The reason for his dismissal was the Applicant’s failure, as one of the Respondent’s salesmen, to reach the sales target set by the Respondent.
(iii)	The category of such reason for the purposes of Section 98(2) Employment Rights Act 1996 was conduct, namely that, despite warnings on many occasions by his manager and regional sales manager, the sales achieved by the Applicant continued to decline and he failed to achieve the reduced target set for him as a final chance.”

	If one had to put a label to the reason, “capability” would have been a better reason than “conduct”, which is generally taken to refer to misconduct, but that is not a difference of any substance save that one has to realise that in the case of capability, there is always a prospect that a man or woman, having properly had identified to them some shortcoming and having properly had drawn to their attention the possibilities of training or improvement, the need for consultation is perhaps a little higher in capability cases than it generally is taken to be in conduct cases.  The fact that the label would better be capability rather than conduct, does not, overall, affect the matter.

	In the last paragraph the Industrial Tribunal said:
“The Tribunal finds that the Respondent’s actions leading up to dismissal were, in the circumstances of the case, within the range of reasonable responses of a reasonable employer.”

	The Notice of Appeal is dated 19 June 1997 (which, oddly, is before the Extended Reasons) and it was received by the Industrial Tribunal on 2 October.

	Mr Sadler has addressed us only briefly, rightly pointing out that everything that he wishes to say is, in effect, in writing, in the submissions that have been received.  Turning to those submissions, a number of grievances are raised by Mr Sadler.  The first, under the heading “WHY..... (i)” is that the employer had set Mr Carter unachievable targets.  As to that, the conclusion of the Industrial Tribunal, which is a matter of fact, is in their paragraph 12:
“..... The evidence showed that the territory taken over by the Applicant was capable of bearing the target set.”

So that ground leads nowhere.

	A second complaint is that Mr Carter had been given a period during which to achieve his target but he was not then allowed the whole of that period in order to meet the target.  But as to that the Industrial Tribunal held that he was given a target for the month of November 1996 (on either the 1st or 4th November) but that the target was split into two and that, in effect, it was two separate targets.  He was required to achieve £2,500 worth of the overall target in the first two weeks.  At a review meeting that was scheduled for 20 November 1996 it was held that he had been well short for that first part of the target and accordingly he was given notice after the review meeting.  That complaint fails.  His target was specified as two distinct parts and he failed to meet part one.

	A third complaint in Mr Sadler’s useful submissions is that Mr Carter had never been given a copy of the disciplinary and grievance procedure.  Mr Sadler has mentioned this morning that the conclusion of the Industrial Tribunal at paragraph 16(i) is incorrect.  What they say there is:
“The Applicant maintained he had never seen a copy of any disciplinary procedure.  The Tribunal accepted Mr Ould’s evidence that a staff handbook containing this had been sent to all personnel with a further pack relating to pension provision.”

It is not for us to receive new evidence and we cannot attach any weight to that complaint which is not one of law but one of fact.

	A fourth complaint that Mr Sadler’s notes makes is that there were serious shortcomings in the appeal machinery as it was worked through in the complaint against Mr Carter.  But the Industrial Tribunal recognised that there were, indeed, real or potential weaknesses in the employer’s case at the procedural level and they investigated the matter at some length.  The whole of their paragraph 16 deals at some length with this point and recognises that there were indeed potential errors, but nonetheless the Industrial Tribunal concluded as it did.

	Deciding what weight is to be attached in the circumstances of the case to particular procedural shortcomings is very much a matter for the Industrial Tribunal itself.  It is a matter of fact and degree.  It is not a matter of law, so there is nothing that we can turn to in Mr Carter’s favour on that subject.

	It is then said that the Industrial Tribunal, in coming to its conclusion, based itself on false evidence in relation to the achievability of the sales targets.  It is not in fact alleged that the falsity of that evidence could not have been demonstrated at the Industrial Tribunal, if due diligence had been deployed.  But, more importantly, the degree to which this or that witness is to be believed as he/she gives evidence on oath is essentially a matter for the Industrial Tribunal.  It is a matter of fact rather than of law, and so, again, the point is not one that assists Mr Carter.

	Another complaint is that the company knew when it set sales targets for Mr Carter that he, Mr Carter, could not achieve them.  It is not at all clear from the findings of the Industrial Tribunal whether that had been put in evidence below, but, in any case, whether Mr Carter was known to be able to achieve or not to be able to achieve a particular target was not really what is relevant to targets.  What is relevant to targets is what a reasonable man in the position of Mr Carter could have achieved by way of sales.  If one could never specify a target other than one which one knew the recipient was able to meet then targets of objective achievement could never reasonably be set.  In any event, the conclusion of the Industrial Tribunal on that point, referring back to the quotation we cited earlier, was that the evidence showed that the territory taken over by the Applicant was capable of bearing the target set.

	Then it is complained that Mr Carter had not been given time to prepare his answers and was not allowed to be represented and not allowed to call witnesses.  What was in issue was not the kind of misconduct, for example, where there has been a theft of company property or something of that nature, or a fight at factory premises, where evidence from others is manifestly desirable.  The nature of the process here was more one of a final warning that Mr Carter had to pull his socks up.  There had been here a very long list of earlier warnings.  In paragraph 5 one sees the catalogue of warnings ran from 25 July 1994, 1 November 1995, 25 June 1996, 
7 August 1996 with the final disciplinary occasion on 1 November (although it is sometimes spoken of as being on 4 November).  So there had been a whole series of prior warnings which the Industrial Tribunal set out at some length.  As we mentioned earlier, the weight to be attached to shortcomings or criticisms in relation to procedural unfairness is very much a matter for the Industrial Tribunal.  

	We have mentioned to Mr Sadler, as he will know, that this Tribunal can only deal with errors of law.  It does not provide an occasion for the reception of fresh evidence in general and we have been unable to identify any error of law in the conclusion of the Industrial Tribunal and accordingly we have to dismiss the appeal.