The Claimant was dismissed on the grounds of capability. She lost her claim of unfair dismissal after the ET found that the Respondent had a genuine belief that the Claimant's capability fell below a standard that they considered acceptable and she had not been dismissed for raising an issue of overwork. The Claimant appealed on the grounds that an employer should consider redeployment prior to making a decision to dismiss on capability grounds.

The EAT dismissed the appeal. The Employment Judge did not err in law in the way he approached the question whether the Respondent ought to have found redeployment for the Claimant after her dismissal on capability grounds.

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Appeal No. UKEAT/0243/16/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 20 April 2017

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

AWOJOBI (APPELLANT)

**

**

LONDON BOROUGH OF LEWISHAM (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR BENJAMIN GRAY (of Counsel)
Bar Pro Bono Scheme

For the Respondent
MR ANDREW MIDGLEY (of Counsel)
Instructed by:
London Borough of Lewisham
Legal Services
1st Floor Laurence House
1 Catford Road
London
SE6 4RU

UNFAIR DISMISSAL - Reasonableness of dismissal

The Employment Judge did not err in law in the way he approached the question whether the Respondent ought to have found redeployment for the Claimant after her dismissal on capability grounds.

1. This is an appeal by Ms Awojobi ("the Claimant") against a Judgment of the Employment Tribunal sitting at London South - Employment Judge Self sitting alone, dated 15 May 2015 - dismissing a claim of unfair dismissal that she brought against the London Borough of Lewisham ("the Respondent"). The appeal, which proceeds on amended grounds for which permission was given at a Rule 3(10) Hearing, is concerned with the question of whether the Employment Judge erred in law or reached a perverse conclusion in one particular aspect of his Reasons, relating to an issue of redeployment.

1. The Claimant was employed by the Respondent with effect from 3 December 2007. In 2011 she became an Administrative Officer, later known as an Administrative Assistant, in the Early Years Team. Her job description stated her main purpose as being to provide an effective and efficient administrative service including the organisation of training and conferences and the provision of a financial support service.

1. By September 2012 there were concerns over her performance. There was an informal capability meeting in that month. At that stage, however, there was no effective action plan or management process; the Employment Judge was critical of the Respondent's failure to provide it. From March 2013, however, there was a series of capability review meetings. They took place in March, May, June and September. During that time an action plan was developed and followed up. By September it was noted that time was running out for improvements to be made. Further targets were set and an action plan agreed. Mr Sealy became the Claimant's line manager.

1. In due course there was a capability hearing on 10 December 2013 reconvened on 21 January 2014. Mr Docksey, the Respondent's Head of Performance and Resources, took that meeting. He decided to dismiss the Claimant with notice. The operative part of his decision letter dated 22 January 2014 reads as follows:

"I am convinced that there has been a great deal of support put in place in terms of supervision. I observed the clear plans that have been developed to support you in your role. Furthermore, I am of the view that despite the support arrangements, there has been no evidence of improvement in terms of your ability to deal with the requirements of your post.

I asked you if there was any further training you felt you needed or had not been given, but you did not identify any further training that you felt would be useful.

I considered whether redeployment would be an option, but given the skills required for all posts across the Council e.g. meeting deadlines and accuracy, I do not consider redeployment to be a viable option.

After much deliberation over this matter, I have concluded that you are incapable of fulfilling the terms of your employment with the Council."

1. Mr Docksey did not carry out any search for specific alternative roles. Rather, as his statement to the Employment Tribunal made clear, he considered that posts even at a lower grade would require the skills that the Claimant had not been able to demonstrate.

1. The Claimant brought a claim of unfair dismissal. The Respondent resisted the claim, alleging that the reason for dismissal related to capability and the dismissal was fair. The claim was heard on 10 April 2015. The Claimant represented herself. The Respondent was represented by counsel. The Respondent said that the Claimant's performance was not at a standard that allowed them to retain her in the organisation notwithstanding substantial input, action plans and warning. The Claimant said the criticisms of her were unjustified, to the extent that there were any failings it was because her workload was well beyond that which a single person could deal with and that the Respondent wanted her out of the organisation because she had the temerity to raise the issue that she was overworked.

1. The Employment Judge in the course of his findings of fact said the following about the period when Mr Sealy was line manager:

"14. At this juncture Mr Sealy came into [sic] line manage the Claimant. Mr Sealy gave clear and cogent evidence as to the proactive steps that he took in order to assist the Claimant over the next period of time and I accept that he did go out of his way and invested substantial management time in trying to assist the Claimant to reach an appropriate standard. I also find that the Claimant was resistant to that. The primary cause was that she did not necessarily believe that there was anything wrong with how she performed and preferred to do things her own way as opposed to how matters were suggested. A clear example surrounds the invoices which were clearly made a priority."

1. The Employment Judge set out a succinct direction of law at paragraph 18 of his Reasons:

"18. It is not for me to determine the Claimant's actual capability to do her job but following the case of Alidair Ltd v Taylor [1978] ICR 445 I need to consider whether the Respondent honestly believed she was incapable and whether there were reasonable grounds for that belief. Following that I need to consider the procedure adopted and then whether the decision to dismiss fell within a band of reasonable responses."

1. He accepted that the Respondent had a genuine belief that the Claimant's capability fell below a standard that they considered acceptable. He did not accept that she had been dismissed for raising an issue of overwork. He said:

"20. I also do not accept the suggestion from the Claimant that she was dismissed for raising an issue of overwork. With limited resources and further cuts on the horizon it is incumbent upon employers to get the best from their employees so that the imposed leaner structures still deliver services effectively. I am satisfied in this case that the Respondent did take seriously the Claimant's contentions that she was being given too much work to do and were within their rights to reject that suggestion. Key in this was the evidence that since the Claimant had left the role had remained the same and had been done to a satisfactory standard by new members of staff."

1. He concluded that the Respondent had reasonable grounds for its belief. He found that key matters to which the Claimant was employed to attend were often not in an acceptable state and there were many occasions when the Claimant's standards of written and verbal communication fell below an acceptable level. This, he found, had been clearly recorded, documented and assessed.

1. He concluded also that the capability procedure had been properly applied. At paragraphs 25 to 30 he dealt with a variety of issues which the Claimant had raised. He found that timescales adopted by the Respondent fell within a band of reasonable responses; that the Claimant had become convinced the job could not be done by one person and set out to prove that proposition rather than try to prove it could be done; and that the managers concerned were professional, thorough and fair.

1. He summarised his conclusions as follows:

"31. Taking all this into consideration was the decision to dismiss within a reasonable band of responses? The Claimant was not a hopeless employee nor would I necessarily describe her as a poor one. It is clear to me that she was not performing at a level reasonably set by the Respondent and accordingly was placing additional burdens upon the service and fellow employees. That looked as if it would continue into the future.

32. The Claimant seemingly had in the past performed in different roles to an acceptable level and indeed had spent some time at a higher grade. Just because the Claimant is good at job A does not necessarily mean that she will be good at Job B. I can understand how another employer may have considered redeploying the Claimant into another role on a final warning to see if the change in role might bring the best out of the Claimant. Equally however I can understand why the view was taken that as most of the matters at issue were of an administrative nature that there would simply be a pushing of the problem to elsewhere in the organisation. In those circumstances it seems to me that the decision to dismiss did fall within a band of reasonable responses and the dismissal is, therefore a fair one."

1. At a Rule 3(10) Hearing permission was given for this appeal to proceed on two grounds. Mr Benjamin Gray, on the Claimant's behalf, has argued them; and Mr Andrew Midgley, on behalf of the Respondent, has resisted them.

1. First, Mr Gray submits that as a matter of principle an employer should consider redeployment prior to making a decision to dismiss on capability grounds. In particular, he relies on an Industrial Tribunal case, Draper v Kraft Foods Ltd [1973] IRLR 328, for the proposition that if an employee is placed in a position beyond their capability an employer will be acting unreasonably if it does not give the employee the opportunity of alternative employment in a less demanding role. He relies also on Henderson v Masson Scott Thrissell Engineering Ltd [1974] IRLR 98, in which Lord Donaldson said if a company could offer alternative employment, that may in a borderline case render a dismissal unfair that would otherwise be fair. He took me to these authorities and to Bevan Harris Ltd v Gair [1981] IRLR 520.

1. Mr Gray submits that the Employment Tribunal failed to apply that principle in this case. The Claimant had been placed into a role beyond her capability. There was no finding of general incompetence; rather, that the particular job was unrelenting and that the Claimant was not a hopeless or necessarily a poor employee. Consideration of redeployment required an employer to consider the actual vacancies available rather than reach a blanket conclusion as Mr Docksey had done. The Employment Judge was required to hold that there was a positive obligation to consider specific alternative employment. He took me to references in the Employment Judge's Reasons and in underlying evidence in support of his argument that the Claimant's capability had to be assessed in the light of the specific demanding job she was undertaking.

1. Secondly, in the alternative, Mr Gray argues that the decision of the Employment Judge was perverse insofar as it concluded that the Respondent acted reasonably in deciding that redeployment was not a viable option.

1. On behalf of the Respondent Mr Midgley submits that there was no error of law in the Employment Judge's reasoning. He applied the correct statutory test; Draper did not set out any principle of law, and in any case the facts here were not analogous to those in Draper. The shortcomings of the Claimant related to generic qualities required in any administrative job. The Employment Judge's reasoning could not be described as perverse.

1. The right not to be unfairly dismissed is governed by Part X of the Employment Rights Act 1996. Section 98(1) provides that it is for the employer to establish the principal reason for dismissal and that it is of a kind specified in section 98(2) or some other substantial reason. Section 98(2) specifies capability. Section 98(4) provides that where the employer has fulfilled the requirements of section 98(1):

"(4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. I must first explain briefly the different roles of the EAT and the Employment Tribunal in an unfair dismissal claim. The task of the Employment Tribunal once the employer has established the reason for dismissal is to decide whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissal having regard to equity and the substantial merits of the case (see section 98(4)). In reaching that decision the Employment Tribunal must keep carefully in mind that there may be more than one reasonable way for an employer to deal with a situation. The question is not whether the Employment Tribunal agrees with the employer but whether the employer acted reasonably. This proposition of law is so well known that neither counsel has cited authority for it, nor is there any need for me to do so. It was this principle that the Employment Judge applied when he said that the decision to dismiss "did fall within a band of reasonable responses".

1. The task of the EAT is quite different. The EAT hears appeals only on a question of law (see section 21(1) of the Employment Tribunals Act 1996). In a case such as this, the EAT is concerned to see whether the Employment Tribunal has applied correct legal principles and reached findings and conclusions that are supportable - that is to say, not perverse - if the correct legal principles are applied. A finding or a conclusion is perverse if and only if it is one that no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached. That is a very strict test. The EAT's role is limited, because Parliament has made Employment Tribunals the arbiters of all questions of fact and evaluation.

1. In this case the Employment Judge was correct to apply section 98(4) and the range of reasonable responses test to reach a conclusion on what was essentially a matter of fact and evaluation for him. Contrary to Mr Gray's excellent submission, I do not accept that there is any principle that an employer will be acting unreasonably if he does not give the employee an opportunity of alternative employment in a less demanding role, even if it were the employer who placed the employee in the more demanding role. That would be to elevate the reasoning of an Industrial Tribunal in disposing of an individual case to a general principle of law.

1. The reasoning of the Industrial Tribunal in Draper was specific to the case before it; an unusual case where an employee had been promoted to supervisor, demoted, then promoted again only shortly afterwards to be dismissed. No general principle of law can be deduced from Draper. The true position is set out in Bevan Harris:

"9. In any event we do not consider that there is necessarily an obligation upon every employer who dismisses an employee on the grounds of capability to offer him employment in a subsidiary or another position. Every case must depend upon its own circumstances. Different considerations may apply to dismissals for other reasons. For instance where an employee is dismissed because he is redundant there may be in certain situations an obligation upon his employer to do his best to attempt to fit him in in some other capacity within his own enterprise (Vokes Ltd v Bear [1973] IRLR 363; Thomas & Betts Manufacturing Co Ltd v Harding [1978] IRLR 213). Where however the reason for dismissal is shown to be capability and where it is shown that the employee received adequate warning as to his shortcomings and adequate opportunity to improve and has failed to do so we do not think that there is the same obligation upon an employer to attempt to fit him in a subordinate capacity. …"

1. In this case, the Employment Judge evaluated all aspects of the Respondent's decision to dismiss in accordance with section 98(4). The question of an alternative role was a relatively small aspect of the case before him, and he was justified in dealing with it relatively briefly as he did at paragraph 32. He recognised that another employer might have taken a different position to that of Mr Docksey, but he found Mr Docksey's position to be reasonable. That was a decision for the Employment Judge. There was no error of law in it, and, to my mind, it cannot possibly be regarded as perverse in the strict sense that I have already explained. It is true, as Mr Gray says, that the Claimant might have performed well in a less demanding administrative role, but it is also true on the Employment Tribunal's findings that she had not demonstrated some key administrative skills in the role despite considerable management effort. I could not possibly say in this case that the Employment Judge's evaluation was perverse. Therefore, since the Employment Judge did not err in law and his decision was not perverse, this appeal must be dismissed.