England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday 4th December, 2001

1. LORD JUSTICE MUMMERY: This is an appeal from the decision of the Employment Appeal Tribunal on 20th November 2000 when, at a preliminary hearing, the Appeal Tribunal dismissed an appeal by Mr Fadipe from the decision of the Employment Tribunal. The decision of the Employment Tribunal in question followed a hearing at London (North) on 17th April 2000 at which Mr Fadipe appeared in person and Miss Seymour, counsel, appeared for the respondent, Reed Nursing Personnel.
2. The Employment Tribunal, in their extended reasons sent to the parties on 5th May 2000, unanimously decided to dismiss applications by Mr Fadipe. His applications were contained in the form IT1 presented by him on 17th November 1999. The complaints he made were: first, that Reed Nursing Personnel had unlawfully provided an unsatisfactory reference; and secondly, that they had unfairly dismissed him from his position as an auxiliary nurse (nursing assistant) on 4th June 1999, his employment having commenced in January that year.
3. The background to the complaint is set out in box 11 of the IT1. I cannot improve on simply reading out the complaint that Mr Fadipe made:

"1. On 13th July 1999, I was offered employment as a day care assistant with North Westminster Care Services, which is under the Social Services Department of the City of Westminster Council, subject to the receipt of satisfactory references. But on 7th September 1999 I was informed in writing that one of the references received was `unsatisfactory to the council'. This unsatisfactory reference upon further query turned out to be the one provided by Reed Nursing Personnel, even though my work was satisfactory, and both them and their clients never had any cause to complain about my work."

4. I pause there to mention that that paragraph 1 clearly relates to the first complaint of unlawful provision of an unsatisfactory reference.
5. Then there is a second paragraph number 2, which reads:

"On 4th June 1999, I received a letter unfairly terminating my work with Reed Nursing Personnel, because I had written a letter to the Chief Executive of Reed Personnel Services Plc, dated 4th May 1999, in which I complained of being maltreated, harassed and persecuted. In this said letter of unfair dismissal, it was claimed that the clients of Reed Nursing Personnel had instructed Reed Nursing Personnel not to put me forward for further assignments with them. This was totally false, and was just a framed up excuse to unfairly dismiss me. At the time of occurrence, I did seek help from a solicitor at Paddington Law Centre, but she was extremely unhelpful, and informed me in a letter dated 10th June 1999, that it will be difficult to take legal proceedings against Reed Nursing Personnel, and advised me to look for another job."

6. There was a pre-hearing review of Mr Fadipe's claim held at London (North) on 3rd November 2000. It was ordered, in consequence of that review, that the case would be listed for a full hearing. The question to be determined was whether the claims were brought within time and whether there should be an extension of time.
7. The decision of the Tribunal after the full hearing on 17th April 2000 was that Mr Fadipe's application in respect of unfair dismissal was out of time and should be dismissed. The findings of fact in relation to that are set out in paragraphs 3 to 7 of the extended reasons. It was explained that Mr Fadipe had other difficulties with his claim. I read from paragraph 3 of the extended reasons:

"The obvious objection to Mr Fadipe's claim [that is the unfair dismissal claim] is that he did not have the necessary 12 months of continuous employment which is a requisite of Section 108 of the Employment Rights Act 1996. There are however a number of exceptions to that 12 month qualifying period and Mr Fadipe has stated that he is basing his claim on the fact that he asserted a statutory right and in the alternative or additionally that this was a health and safety case and that he was unfairly dismissed for one of those reasons and under Section 104 and 100 of the Employment Rights Act 1996, no minimum period of employment is required. If the Tribunal finds that Mr Fadipe was dismissed for a health and safety reason or for the assertion of a statutory right, then the dismissal is automatically unfair. However the right to claim unfair dismissal must be exercised within 3 months of the effective date of termination of the employment - Section 111 Employment Rights Act 1996. Mr Fadipe was notified of the termination of his services with the Respondents on 4 June 1999 but he did not present his Originating Application to the Tribunal until 17 November 1999, so he was more than two months out of time."

8. The Tribunal then dealt with the evidence Mr Fadipe had himself given that he had consulted solicitors both before and after the termination of his employment. The Tribunal held that the application was out of time. They refused to extend the three-month period under section 111 of the Employment Rights Act.
9. In exercising the discretion to refuse an extension, the Tribunal stated in paragraph 7 that Mr Fadipe had advanced to them an argument that it was just and equitable to extend the time, and that the refusal to provide a satisfactory reference was a "continuing act".
10. The Tribunal pointed out that the concepts of just and equitable and continuing act, though relevant to claims under the Discrimination Acts, are not relevant to claims of unfair dismissal under the Employment Rights Act, and the Tribunal did not have discretion to extend the period as Mr Fadipe would like them to. The test was whether it was reasonably practicable for him to have presented his claim within the three months. The Tribunal held that it was and therefore it was not a case for extending the time.
11. As regards that part of the case, Mr Fadipe failed in his appeal to the Employment Appeal Tribunal. On his application for permission to appeal I gave a reasoned judgment explaining why he had no real prospect of success in appealing against the dismissal of the unfair dismissal claim on the reasoning of the Employment Tribunal.
12. This appeal is therefore solely concerned with the first complaint in the IT1 relating to the unfavourable reference. The conclusions of the Tribunal in respect of that claim were that the claim was not within the jurisdiction of the Tribunal. The reasons for their conclusion are stated in paragraph 8 of the decision. They said this:

"With regard to the claim of provision of an unsatisfactory reference, that by itself is not a claim for which this Tribunal has jurisdiction. There is no absolute right for an employee or ex-employee to demand a reference and there is no absolute obligation on an employer to provide a reference. If he does provide a reference then it must be fair, truthful and accurate and if it not, the employee may have remedies against the employer or former employer at common law but not before this Tribunal. The only possible exception to that statement is in relation to the case which Mr Fadipe relies upon namely Coote v Granada Hospitality Ltd [1998] IRLR 656 which is a case which came before the European Court of Justice. In that case the Court ruled that an employee [sic] cannot refuse to grant a reference where that is seen as victimisation following a complaint of sex discrimination."

13. The Tribunal said there was no such claim in this case, under either of the Race or Sex Discrimination Acts or under the Disability Discrimination Act. They said that in those circumstances they could see no basis on which he could bring his claim for an unsatisfactory reference within the ambit of the Tribunal. So that claim was rejected.
14. Before I leave that decision, it is important to note two points. First, there was no time-bar objection to Mr Fadipe bringing such a claim if the Tribunal had jurisdiction to entertain it, since the date when the detriment, which Mr Fadipe claims he suffered, did not occur before 7th September 1999, when the City of Westminster informed him that they were not giving him the job, which had been offered subject to satisfactory references, because they had received an unsatisfactory reference. That was a letter from Reed Nursing Personnel stating that Mr Fadipe had been registered with them as an auxiliary nurse, that they had no complaints about his standard of work, but would not be prepared to offer him any future assignments. As the claim was presented on 17th November that was in the requisite period for making a complaint from the date of the detriment.
15. The second point, however, which I would note from paragraph 8 of the extended reasons, is that there is no reference at all in the claim for an unsatisfactory reference to any health or safety consideration. That had been dealt with solely in the earlier paragraphs in relation to the claim for unfair dismissal and whether the time for bringing such a claim should be extended.
16. In order to succeed on an appeal from an Employment Tribunal, it has to be shown that there has been an error of law in the decision of the Tribunal. The Employment Appeal Tribunal, in the judgment given on behalf of the Tribunal by His Honour Judge Wilson, considered arguments which Mr Fadipe had presented to the Tribunal in person and concluded that, in paragraph 5:

"We can find no legal fault in the way in which the tribunal reached its conclusions and we can see no prospect of success were this appeal to proceed to a full hearing ..."

17. On the application for permission, Mr Fadipe satisfied me that there was a point deserving of a full hearing in relation to the claim for an unfavourable reference.
18. The way in which the matter is put, squarely by Mr Fadipe, is that there was an error of law in the Tribunal holding it did not have jurisdiction, since, he submits, it clearly did have jurisdiction to entertain his complaint under section 44 of the Employment Rights Act 1996. He said, first, that he relied on section 44(1)(c). That is in Part V of the 1996 Act, which contains provisions affording protection for employees from suffering detriment in employment. Section 44(4) deals with health and safety cases. It provides:

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that- ..."

and Mr Fadipe relies on (c), which reads:

"(c) being an employee at a place where-

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety, ..."

19. Then under section 48, there are provisions for enforcement which provide that:

"(1) An employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of section 44, 45, 46 or 47."

20. Mr Fadipe says that he was such an employee and that he suffered detriment. He says he suffered detriment in the form of a loss of a job opportunity with the City of Westminster, which was subject to satisfactory references. A reference had been provided by Reed Nursing Personnel which was not regarded by Westminster as a satisfactory reference. He says that the fact that he suffered that detriment after he had ceased to be employed by Reed Nursing Personnel and that Reed Nursing Personnel had provided the reference after he ceased be employed is beside the point when it comes to liability under section 44. He says that the protection given under section 44 extends to a person who has worked under a contract of employment but that employment has ceased. For this he relies on section 230, which provides:

"(1) In this Act `employee' means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment."

21. Therefore Mr Fadipe submits the Employment Tribunal had jurisdiction to entertain his case. In the course of his submissions he referred to the documents which he said were the basis of his claim. He referred to a very detailed letter of 4th May 1999 to the Chief Executive of Reed, which he says raised the health and safety concerns. It was those concerns which he had raised that had caused him to be dismissed, and, he submitted, it was those concerns which also caused Reed Nursing Personnel to supply the reference that had caused the detriment I have described.
22. We have also looked at the reference itself (to which I have referred) and the letter from Westminster.
23. On the legal materials Mr Fadipe briefly referred to the Council Directive on the introduction of measures to encourage improvement in the safety and health of workers at work, 89/391/EEC, in particular Articles 4, 11.2 and 11.4. The only purpose for which he relied on the Directive was to demonstrate that section 44 had implemented and satisfied the requirements of the Directive.
24. The matter therefore comes back to the effect of section 44 on this case. Mr Fadipe submitted that the purpose of the section extended to protecting a person in his position, namely an ex-employee, from suffering retaliation from an employer or former employer by reason of his having raised the health and safety matters referred to in the section and set out in detail by him in his letter of 4th May.
25. Mr Fadipe has presented his arguments forcefully and clearly. For myself, I am in no doubt as to what points he is making. I have, however, come to the conclusion that he has failed to demonstrate that there was any error of law in the decision of the Employment Tribunal that it did not have jurisdiction to entertain his claim. I have come to that conclusion for two reasons. The first is that section 44 does not, on its proper construction, apply in the circumstances relied upon by Mr Fadipe. The section is in the part of the Act that affords protection from suffering detriment in employment. Its purpose is to protect employees while they are still employed from suffering detriment, short of dismissal, by reason of having brought to their employer's attention health and safety matters of the kind referred to in section 44(1)(c). If it is a dismissal case the section does not apply: see section 44(4). The claim for unfair dismissal is made, if it is an alleged dismissal on health and safety grounds, under the unfair dismissal provisions in a different part of the 1996 Act. I am clear that this section does not apply where the facts are, as here, that the alleged detriment was inflicted and suffered after the employee (that is Mr Fadipe) had ceased to be employed.
26. As for Mr Fadipe's reliance on the reference in section 230(1) to "where the employment has ceased, worked under", in my view that parenthesis in section 230(1) was inserted by Parliament for the purposes of dealing with the kind of situation which would arise under section 48(1), which entitles an employee to present a complaint at a Tribunal that he has been subjected to a detriment. The person who may present a complaint under that section may still be employed; or he may have ceased to be employed, either by reason of resignation or dismissal. He does not cease to be entitled to present a complaint by reason of the fact that he has ceased to be an employee.
27. The section was not, however, intended to confer a general right on an ex-employee to complain about any acts done by his ex-employer after the employment relationship has ceased which could be described as detriment inflicted by reason of the ex-employee having raised health and safety grounds.
28. The second reason why I would hold that there has been no error of law by the Employment Tribunal is that I am satisfied that, on a reasonable reading of the extended reasons as a whole, this way of putting the claim in relation to the unfavourable reference was in fact never before the Tribunal. As Miss Seymour, on behalf of the respondents, pointed out, it is not permissible at this stage of the proceedings to introduce a new claim: Kumchyk v Derby County Council [1978] ICR 1116. I refer back to the lengthy quotation which I have made from the IT1 and to the quotations which I have made from the Employment Tribunal's extended reasons. It is clear that, reading those reasons as a whole, the health and safety issue was raised solely in relation to the claim for unfair dismissal. It was alleged by Mr Fadipe, contrary to what he has submitted at the hearing today, that health and safety matters and concerns were the reason why he had been given the unsatisfactory reference. It is no error of law on the part of an Employment Tribunal to hold that it has no jurisdiction to entertain a claim which is not in fact formulated for its determination.
29. I should mention for the sake of completeness that reference has been made at this hearing, as reference was made at the hearing in the Employment Tribunal, to the decision of the European Court of Justice in Coote v Granada Hospitality Ltd [1999] ICR 100. That was a ruling of the Court of Justice on the effect of Article 6 of the Equal Treatment Directive, 76/207/EEC, which has no equivalent provision in the Council Directive concerning health and safety at work. The Coote case was dealing with the quite different situation of the need to provide judicial protection for a worker whose employer, after the employment relationship has terminated, refused to provide a reference as a reaction to legal proceedings which the employee had brought to enforce compliance with the principle of equal treatment within the meaning of that Directive. That case is not authority for the wider proposition canvassed by Mr Fadipe that there was a general principle under which an employee who complained that he suffered retaliation from his employer or former employer, having raised health and safety matters, was entitled to bring a claim under section 44 of the 1996 Act.
30. I know that Mr Fadipe, who has pursued this case vigorously, will be disappointed with the result of the appeal. I am afraid, though, that I have formed these clear views after hearing his arguments and considering the full skeleton argument and oral submissions of Miss Seymour. There is no error of law in the decision of this Employment Tribunal. This court cannot therefore interfere with its decision rejecting Mr Fadipe's claim in relation to the reference.
31. I would dismiss this appeal.
32. LORD JUSTICE BUXTON: I agree with everything that my Lord has said.
33. I would add just one footnote with regard to what my Lord said in respect of the fact that the ground that Mr Fadipe now relies on was not taken before the Employment Tribunal. That difficulty or objection is not, I should emphasise, simply one of form, nor simply a technical barrier raised in the way of applicants. That is demonstrated in this case by the fact that if the point that Mr Fadipe now seeks to rely on were open to him - and my Lord has pointed out that on the construction of section 44 that it is not - but if it were, it would not in any way be enough under the statute for him simply to assert in general terms a complaint in respect of health and safety. He would have to satisfy, or at least invite the Employment Tribunal's attention to, the detailed terms of section 44(1)(c) that my Lord has set out in his judgment. That involves a number of questions of fact, such as the safety arrangements made by the employer, and also a question of judgement; that is to say, whether "by reasonable means" the matters complained of have been brought to the employer's attention.
34. Those are all points that need to be firmly in the mind of the Tribunal before it can determine whether it has jurisdiction on the ground now asserted. Unless that ground is clearly asserted before the Tribunal, there is no opportunity for those preliminary matters to be considered at all. What the situation in the present case is in regard to those matters we simply do not know. We do not need to know, for the reasons my Lord has set out. But if this were a case in which section 44 were a live question, it would indubitably be necessary for the point to be taken at the beginning in clear terms so that the Tribunal could properly deal with it. That was not done in this case. That is a pressing and important reason, in addition to the construction of section 44 itself, why this appeal cannot succeed.
35. I, like my Lord, would dismiss the appeal.
36. LORD JUSTICE LONGMORE: I agree with both judgments which have been delivered.
ORDER: Appeal dismissed with costs, to be the subject of a detailed assessment; permission to appeal to the House of Lords refused. (Order not part of approved judgment)