United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N PLETCHY (Friend)


 


MR JUSTICE MORISON (PRESIDENT): Mr Commis, whom I shall call if I may the "employee" for the purposes of this decision, wishes to appeal from an interlocutory decision of an Industrial Tribunal Chairman, who decided that he should not be permitted to argue a case before them that he has been caused a personal injury by reason of his employer's conduct.

It is unnecessary to state any of the facts underlying the dispute between the parties which has as yet to be litigated. It is the employee's case that as a result of his employer's behaviour he has sustained injury to his health. He originally said that this behaviour by his employers entitled him to claim constructive dismissal, but I think that that claim has been withdrawn. The employee states that the Industrial Tribunal has jurisdiction since he is making a contractual claim for damages for breach of contract, namely, for damages for his employer's failure to take reasonable care of his health and safety at work which is either an express term of his contract by reason of the Lancashire County Council having adopted certain health and safety measures; or alternatively, an implied term of his contract: to be implied as a matter of common law and by reason of the Health and Safety at Work Act 1974.

The essence of the argument which Mr Pletchy puts forward can be stated in this way. He submits that Article 118a of the Treaty of Rome requires a Member States to pay particular attention to the health and safety of workers. The Article provides that the Council will give effect to this general statement contained in Article 118a1 by making directives addressed to Member States. The employee asserts that this is an obligation which has direct effect, and upon which the employee is entitled to rely in an Industrial Tribunal. Second, reliance is place upon the Industrial Tribunal's Extension of Jurisdiction order 1994 which commenced on 12th July 1994.

We can state shortly our reasons for rejecting both arguments. In the first place, nothing in Article 118a requires a Member State to make provision for claims for damages for injury to health and welfare to be dealt with in a particular court or tribunal. An employee who alleges that his employer has caused him personal injury, whether in breach of contract or in tort, may recover damages by bringing a claim in the appropriate court, on the basis of contract or tort. Industrial Tribunals have not been identified as the appropriate forum for such claims, rather, they are brought in the High Court or County Court or Small Claims Court as the case might be. Being a creature of statute, an Industrial Tribunal has no more power than that conferred on it by Parliament. Parliament has not conferred any such jurisdiction on the Industrial Tribunal. It seems to us that the United Kingdom is in compliance with Article 118a in so far as it makes provision in other courts for workers to seek compensation from their employers by reason of their failure to provide for their employees' health and safety at work.

Accordingly, whilst Mr Pletchy is, in our judgment, entirely correct that there is certainly an implied term of Mr Commis's contract of employment, that his employers will not cause him injury by reason of their lack of care for his health and safety, we are not persuaded that Article 118a requires such a claim to be maintained in the Industrial Tribunal, even where the facts on which reliance is placed are related closely to a claim which is sustainable in the Industrial Tribunal.

As to the second point, the 1994 Order makes its clear that no jurisdiction is being conferred on Industrial Tribunals in respect of claims for damages for personal injury. Such claims are expressly excluded by the words of the Order. The reason for it as a matter of policy is not hard to detect. Industrial Tribunals already have extensive jurisdiction and have an abundance of work. Assessing damages for personal injuries and deciding whether there has been carelessness or not leading to injury, would be additional burdens to be imposed on Industrial Tribunals who would not have the general expertise which the courts to which I have referred, which commonly deal with them, have acquired over the years. Assessing damages for personal injury is a difficult and time-consuming operation requiring medical evidence and so forth.

It seems to us quite clear that by providing litigants with the right to make complaints in relation to these matters in the civil courts but not the tribunals, it cannot sensibly be suggested, as the Law stands at present, that the United Kingdom is in breach of its obligations under the Treaty, which leaves it open to domestic law in which forums such claims are to be made.

Accordingly and grateful as we are to Mr Pletchy, we are unable to accede to his submissions and the appeal on this point is not therefore arguable and must be dismissed.