United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	PAUL CAPE (of Counsel) Messrs. Burstalls Solicitors PO Box 31 Ocean Chambers 54 Lowgate Hull HU1 1JF


 


JUDGE PETER CLARK: This is an appeal by Mr Burt against a decision of the Hull Industrial Tribunal sitting on 20th February 1996 dismissing his complaint brought under what was then section 57A of the Employment Protection (Consolidation) Act 1978.

Shortly, the background was that he was employed by the respondent and his duties at the Leisure Centre in which he was employed involved supervising the swimming pool. An incident arose on 20th August 1995 which resulted in the appellant deciding to close the pool early. His evidence was that at about 5.20 p.m. on that day he noticed that the swimming pool was becoming milky. He said that he took a water sample and decided that that sample showed that the chlorine level in the pool was too low. He waited a further ten minutes, took another sample; the pool he thought had deteriorated further, and he closed it. It seems that a member of the public who was in the pool then complained, and as a result disciplinary proceedings ensued, which resulted ultimately in his dismissal.

Before the matter came on for hearing before the Industrial Tribunal, an application was made by the appellant's solicitors on 12th February 1996 to amend the originating application which had originally indicated that his claim was being brought under section 57A(1)(e) of the 1978 Act. The proposed amendment read, in addition to the original complaint:

"or whether I have been unfairly dismissed under Section 57A(1)(a) of the Employment Protection (Consolidation) Act 1978."

That application was granted by letter dated 13th February, so that when the matter came on for hearing on 20th February 1996, the tribunal had before them two questions. One posed by section 57A(1)(a) which provides that a dismissal shall be unfair if the reason for it or the principle reason was that the employee:

"(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, carried out, or proposed to carry out, any such activities."

The alternative way in which the case was put under paragraph (e) of subsection (1) was that the dismissal would be unfair where the reason was that the employee:

"(e) in circumstances of danger which he reasonably believed to be serious and imminent, took, or proposed to take, appropriate steps to protect himself or other persons from the danger."

The expression "appropriate steps" is then defined in subsection (2) of the section 57A. The question of whether steps are appropriate:

"shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time."

In this appeal by way an amended notice now before us, Mr Cape attacks the tribunal's finding, on the basis it misdirected itself in law when considering subsection (1)(e) and subsection (2), and in reaching the conclusion in paragraph 9 of the extended reasons that the steps taken were not appropriate. The critical finding of fact in relation to this aspect of the appeal, it seems to us, is contained in paragraph 9 when the tribunal say this:

"We believe the appropriate steps for the applicant to take would have been to contact Mr Jackson [his superior] and having contacted Mr Jackson, either put the responsibility on him as the park manager to close the pool, or if Mr Jackson was not available, then to exercise his own discretion."

Later they say:

"The applicant did not take those steps and in our view, therefore, what he did was not appropriate."

It seems to us, despite the arguments of Mr Cape, that the Industrial Tribunal did not misdirect themselves in law when approaching the question raised by subsections (1)(e) and (2) of section 57A. They made a finding of fact which Mr Cape acknowledges he cannot go behind, and it seems to us on that basis, that the Industrial Tribunal was entitled to dismiss the claim put on that basis.

However, in his amended Notice of Appeal, Mr Cape takes a further point, and it is this:

"notwithstanding the Appellant's case, set out in the Originating Application that he was "... responsible for the Health and Safety of the public using the pool", the tribunal failed to consider, alternatively make any findings of fact material to, section 57A(1)(a)."

We repeat that the point was specifically raised by way of amendment prior to the hearing on 20th February, and having searched vainly through the tribunal's reasons, we can see nowhere any indication that the tribunal considered that alternative basis of complaint. On the contrary when one looks at paragraph 5 of the reasons, it is apparent that the tribunal was directing itself solely to the issue under subsection (1)(e) and (2).

In these circumstances we think that there is an arguable point to go forward to a full hearing of this appeal tribunal, but that point is limited to the ground set out in subparagraph (5) of paragraph 6 of the amended Notice of Appeal. In these circumstances we shall strike out subparagraphs (1) to (4) inclusive of paragraph 6 of the Notice of Appeal, and allow the matter to go forward purely on subparagraph (5).