United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 5_94_0606

Appeal No. EAT/5/94

EAT/901/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th June 1995

Before

HIS HONOUR JUDGE SMITH Q.C.

MR L D COWAN

MRS P TURNER OBE

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HALL FIRE PROTECTION LTD          APPELLANTS

MR I BUCKLEY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J P BONNEY

(Representative)

For the Respondent MR P JOHNSON

(Solicitor)

Oldham Law Centre

Prudential Buildings

79 Union Street

Oldham

PL1 1HL


 


JUDGE SMITH QC: This is the unanimous decision of the Appeal Tribunal. These are linked appeals by Hall Fire Protection Ltd, the appellant employers against the decisions of an Industrial Tribunal sitting in Manchester. The first decision being on 28th April 1993, when it held that Mr Buckley, the respondent employee, had been unfairly dismissed. Secondly, against its decision on 1st July 1993 awarding him compensation of £6,181.00 including a compensatory award of £5,053.00.

The appellants install and maintain fire security and safe systems, e.g. sprinkler systems and the like. The Respondent was employed eventually as a service engineer. That employment necessitated much driving in the course of his employment. He had been employed from 1987 until his dismissal on 13th April 1992, in circumstances I shall describe a little later on.

The respondent unfortunately suffers from diabetes, as was known to the appellants, and was on continual medication, that is to say insulin injections. As appears from medical evidence which was before the Industrial Tribunal, the respondent had been changed from animal to human insulin some five years before the events which led to his dismissal.

On 2nd April 1992 in the course of his work, the respondent was driving and plainly suffered a hypoglycaemic attack or "hypo" attack without any or any sufficient warning which caused him to black out and resulted in a damage only motor car accident involving two vehicles. The event was understandably taken very seriously by the appellants, and reported to their insurers, with the result that the respondent was suspended from driving on 3rd April 1992. Meanwhile the respondent himself went at once to his diabetic clinic in Manchester and obtained a letter from a Dr Joyce which he gave to the appellants, which was before the Industrial Tribunal. In that letter Dr Joyce expressed the view that a change back to animal insulin would probably have the result that the respondent would get sufficient warning of any future "hypo" attack to be able safely to deal with the situation. She gave evidence to a similar effect before the Industrial Tribunal.

Meanwhile by a telephone call on 9th April 1992, as subsequently confirmed in their letter, the appellants' insurers informed the appellants, that the respondent was not to drive until further notice:

"... to enable insurers to come to a decision as to whether he should be allowed to drive again, ..."

The letter went on, sensibly in our judgment, to propose that there should be a medical form completed by the respondent, and for the insurers to be informed by the appellants of the decision of the DVLC at Swansea as to the future driving licence of the respondent, which might itself involve a "full medical" as the insurers put it.

However, instead of following the medical matter up in that way, the appellants took a decision to dismiss the respondent, which they communicated in their letter to the respondent of 13th April 1992, which was of course before the Industrial Tribunal. What they were saying in that letter, in effect, was that due to the duties which the respondent had to perform, including driving long distances they could not take the risk that such an incident might recur.

By paragraph 9 of their decision, the Industrial Tribunal decided, of course, that the reason for the dismissal was on the grounds of capability due to the respondent's diabetic condition. They then went on specifically to consider Section 57(3) of the 1978 Act. They reminded themselves, quite correctly in our judgment, that they had to decide whether the appellant employers had acted within the band of reasonable responses that employers might make in the circumstances in which those employers then found themselves.

The Industrial Tribunal then concluded that the action of the employers to dismiss was outside the band of reasonable responses, because, in the judgment of the Industrial Tribunal, any reasonable employer would have obtained a detailed medical report and made their decision only after considering it.

Mr Bonney, who appeared before us on behalf of the appellants, attacks this decision as being perverse or one which "certainly wrong", using the words of May J. or an "impermissible option". We cannot agree with that submission. In our judgment, under Section 57(3), whilst the Industrial Tribunal must not substitute its own decision for that of the employer, it is for the Industrial Tribunal to delimit the bands of reasonableness in any given case by an application of their collective industrial knowledge to the situation in which the employers found themselves.

Whilst another Tribunal might have held that the appellants' decision to dismiss was within the band of reasonable responses, we cannot say that the Industrial Tribunal's decision, can possibly characterised in any way as being perverse.

Clearly, in such a matter as this, involving medical judgment, there is much to be said for requiring an employer, if he is to be held to have acted reasonably in dismissing and within the band of reasonable responses, to obtain proper medical opinion before so acting. Otherwise, there is plainly a risk that any decision taken may be, at best, ill-informed and, at worst, arbitrary. Accordingly we cannot characterise the Industrial Tribunal's decision as being perverse in any way, and the first appeal must fail.

JUDGE SMITH QC: We turn consider the second appeal namely the appeal against the compensatory award.

Mr Bonney submitted that there was before the Industrial Tribunal evidence which should have caused the Industrial Tribunal to conclude and decide that it was just and equitable, either substantially to reduce the compensatory award or indeed disallow it altogether.

Two matters were relied upon before us by Mr Bonney, as indeed they were before the Industrial Tribunal. The first was based upon the admitted evidence that in 1991 the respondent had done some work on the Wheatsheaf Shopping Centre at Rochdale in his spare time for payment in connection with the installation of sprinkler system at those premises. The submission was made that that was a breach of his obligation of good faith, trust and confidence towards his employers. We wholly reject that submission. In our judgment, the Industrial Tribunal dealt with that allegation entirely correctly in paragraph 4 of their decision relating to compensation. In our judgment, it was entirely open to the Industrial Tribunal to decide as they did that the respondent was fully entitled to utilise his spare time and his skills to his own advantage, provided that he did not cause serious harm to his employers in so doing. The Industrial Tribunal, in our judgment, quite properly held that no such harm had been caused in this case. They relied, correctly, on the decision of Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] AELR 350, and we have also been referred, helpfully to the somewhat more recent decision of Nova Plastics Ltd v Froggatt [1982] IRLR 146, where the Employment Appeal Tribunal held that it would be wrong for any court to support a contention that a workman cannot usefully and profitably employ himself in his free time in some other capacity for some other employer, and obviously that would clearly include working for himself.

The Employment Appeal Tribunal went on to qualify that proposition as follows:

"If it can be shown that what a man is doing in his spare time can cause great harm to the employer, then, .... that will be a breach of trust or an implied term that a man shall loyally serve his employer in his business."

That case, although admittedly involving an odd job man, correctly sets out the principles to be applied, and, in our judgment, it is clear that the Industrial Tribunal applied exactly the correct legal principles to the evidence before them, and reached conclusions which were entirely correct.

The second submission in relation to the second appeal was based on the fact that within a day or so of the dismissal, if not indeed on the very day of the dismissal, there was some evidence before the Industrial Tribunal that the respondent was planning to start his own business in the same line of work as that of the appellants. There was indeed documentary evidence before the Industrial Tribunal of a somewhat rudimentary and entirely un-secretive adaptation by the respondent of the appellants' service and maintenance contract with a view to its being used in his own business. Here again, although the Industrial Tribunal does not specifically address the particular exhibit we have referred to above, in our judgment, the Industrial Tribunal dealt entirely correctly with these allegations in paragraph 5 of its decision. In our judgment, there was ample evidence before the Industrial Tribunal upon which it could conclude that the appellants were aware that the respondent might set up on his own account, and indeed, might sub-contract work from them. The Industrial Tribunal were quite justified in saying that such behaviour on the part of the respondent came as no surprise to the appellants and could not have possibly caused any commercial harm to them in all the circumstances.

Of course, we fully accept that there can be situations where a trusted employee can be guilty of serious misconduct, which renders his continued employment untenable by taking steps towards setting up a rival concern and unlawfully using his position with his employers as a spring board from which to steal custom from them. No doubt Beaujeux v Marconi Instruments Ltd [1980] EAT, was such a case. But, in our judgment, the situation there was completly different from the one that this Industrial Tribunal was concerned with.

Accordingly the second ground of the second appeal must also be dismissed.

Accordingly the appeals are dismissed.

There are just two points which I must make sitting as a Judge with this Employment Appeal Tribunal. It is a matter for criticism here that there were no skeleton argument presented by either side to the Employment Appeal Tribunal. It is extremely important that this common form direction be complied with to the letter, and serious consequences will follow if such directions are not complied with. It may be that appeals will be struck out if directions are not complied with properly. Similarly here, again, I must mention that there does not seem to have been any proper effort made here to agree the documentation. Once again, the principal obligation must fall upon the appellant, because the appellant has the conduct of the appeal. It really is essential that the judge, and the members, not least the members, should be supplied with all documentation upon which the parties seek to rely. Otherwise the whole system breaks down and a busy appeal tribunal like this is hampered in the important work which it has to discharge.