United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C SHELDON (of Counsel) Messrs Bond Pearce Solicitors Darwin House Southernhay Gardens Exeter Devon EX1 1LA
For the Respondents	MR A LYDIARD (of Counsel) Messrs Ashurst Morris Crisp Solicitors Broadwalk House 5 Appold Street London EC2A 2HA


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Cardiff Industrial Tribunal, Mr Goodwin, against that tribunal's decision, following a hearing held on 25th-27th September 1995, to dismiss his complaints of unfair dismissal and wrongful dismissal. Extended reasons for that decision are dated 5th December 1995.

Amendment

The appeal came on for a preliminary hearing before a division of the Employment Appeal tribunal presided over by Janet Smith J on 16th October 1996. The appellant represented himself, as he did below and the matter was allowed to proceed to a full hearing. Following that hearing the appellant, with the leave of that tribunal, amended his Notice of Appeal on 30th October 1996.

He has very recently instructed solicitors who in turn instructed Mr Clive Sheldon of Counsel. As a result an application was made by letter dated 26th June 1997 to re-amend the Notice of Appeal. That application is faintly opposed by Mr Lydiard on behalf of the respondents, who has prudently prepared a skeleton argument which incorporates his submission in answer to the re-amended grounds of appeal.

The question of amendment is essentially a matter of discretion for us. In our view, given that the respondent is able to deal with the new grounds raised, the proper course is to allow the amendment so that all the issues in the appeal may be properly ventilated.

The complaint

The appellant was employed by the respondent from 1st October 1993 until 30th April 1995, when he quit the employment in circumstances which he alleged amounted to constructive dismissal. He did not have two years continuous service for the purpose of claiming 'ordinary' unfair dismissal, but relied upon a reason for dismissal which, if made out, would lead to a finding of automatic unfair dismissal under s.57A of the Employment Protection (Consolidation) Act 1978, regardless of his length of service. That statutory provision is now to be found in s.100(1)(a) of the Employment Rights Act 1996, which reads:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that-

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

The facts

The respondent was at the relevant time engaged in setting up a cable television and telephone network in South Wales.

The appellant was employed as a construction manager. It was a part of his duties to ensure compliance with the relevant requirements under the Health and Safety legislation and the New Roads and Street Works Act 1991 ["the 1991 Act"] by the respondent's sub-contractors. Accordingly it is common ground that he was "designated employee" for the purposes of s.100(1)(a).

On of the respondent's sub-contractors was a company called Caspian Construction Ltd ["Caspian"]. The principal of Caspian was Mr Peter Thomas. It is clear that the appellant was unimpressed by the performance of Caspian, in particular with regard to its adherence or lack of it to proper health and safety procedures. He was not alone. On 10th February 1995 he received two letters of complaint from West Glamorgan County Council dated 7th and 8th February 1995. Those letters referred to incidents on 6th and 7th February respectively, when Caspian contractors were found to be excavating across two roads in Swansea without any form of traffic control. It was pointed out that such practices offended s.65 of the 1991 Act, and that further breaches would lead to criminal proceedings being taken against Caspian.

Having considered the evidence, both oral and documentary, the tribunal found that the respondent accepted the accuracy of the appellant's concern about the performance in health and safety matters of Caspian.

It is equally clear that the appellant took an uncompromising stance over Caspian's performance which endeared him neither to Caspian, nor to his senior managers within the respondents.

On 17th November 1994 the appellant indicated his dissatisfaction with Caspian in the form of a memorandum to his superior, Mike Graves. He recommended then that no further work be issued to Caspian.

Mr Graves took a more conciliatory approach. Mr DellaRocco, the respondent's senior American representative in the United Kingdom, took a similar line.

On 2nd February 1995 a meeting took place with Caspian representatives in Cardiff. Mr Goodwin was present, as were Messrs Graves and DellaRocco. As the Industrial Tribunal put it, Mr Goodwin came in for severe criticism from Mr Peter Thomas of Caspian for his approach to Caspian over issues of health and safety. Mr Goodwin felt that he was not supported by his seniors at that meeting and was humiliated and intimidated. They saw things differently. They thought that Mr Thomas' criticisms were well founded because on 26th January the appellant had been told by Mr DellaRocco and Mr Graves that he should alter his ways in dealing with Caspian, and this was confirmed by a memorandum from Mr Graves to the appellant dated 30th January.

Nevertheless on 16th February the appellant was given a back-dated pay increase and was told that the Company wished and trusted that his career would progress and wished him every success in the future.

Following the two letters from West Glamorgan County Council, the appellant expressed his further concerns over Caspian's health and safety record to Mr DellaRocco, asking that the respondent's Chief Executive in the United States of America, Mr Barclay Knapp, should be copied in.

On 21st February further safety issues arose at various sites in Swansea involving Caspian.

The following day the appellant met with Mr DellaRocco in Guildford. He was seeking guidelines as to how he should deal with what he saw as the unsatisfactory standards of Caspian.

There was a dispute between the two men as to what was said at that meeting. The tribunal preferred Mr DellaRocco's version, to which we shall return.

Following that meeting the appellant wrote a letter dated 22nd February to Caspian, referring to health and safety breaches on 21st February, including working without cones an safety barriers in Middle Road, Swansea. He asked Caspian to remove the offending crew from the site.

On learning of this development Mr DellaRocco was "outraged", so the Industrial Tribunal found. He wrote to the appellant on 24th February stating that he had instructed the appellant to help contractors gangs to improve and succeed. He did not doubt the appellant's word in respect of Caspian's work, but pointed out that it was the appellant's responsibility to manage the works professionally. He expressed himself to be professionally embarrassed and disheartened by the appellant's actions. It was this approach which the tribunal was satisfied Mr DellaRocco had conveyed to the appellant at the meeting on 22nd February. The appellant's version, rejected by the tribunal, was that Mr DellaRocco had authorised the removal of any gang which disregarded the basic rules of safety in the public highway, so putting the general public at risk.

By 20th March 1995 the respondent had decided that the appellant should be removed from direct dealings with Caspian. In the course of a re-organisation the appellant was to become Assistant Construction Manager, reporting to Mr John Graves, formerly his equal.

The appellant's reaction, so the tribunal found, was that he was dissatisfied with what he clearly genuinely felt was the lack of support from the respondent in his wish to maintain satisfactory standards of health and safety, particularly in relation to Caspian. He felt that he was being demoted.

He expressed his grievance to the Chief Executive, Mr Knapp in a memorandum dated 22nd March 1995, copied to Mr Terry Ryan. Mr Knapp did not respond personally, but on 29th March Mr Ryan replied , stating that the appellant had not been demoted to placate a contractor.

On 5th April the appellant tendered his resignation by letter to Mr Ryan in which he expressed his total lack of confidence in the respondent's senior management. His notice of resignation expired on 30th April 1995.

The Industrial Tribunal decision

The tribunal state their principal finding in paragraph 21 of their reasons thus:

"21 We direct ourselves that the provisions of Section 57(1) exclude the way in which an individual carried out his duties as being a reason which might entitle him to regard himself as constructively dismissed when advised and admonished as to his method of discharge of the aforesaid duties by his employer."

On that basis the tribunal held that the complaint must fail.

They then went on to consider the question of dismissal for the purposes both of unfair dismissal and the claim of wrongful dismissal added by way of amendment, and reached the following conclusions:

(1) there was no breach of the implied term of mutual trust and confidence, in that the appellant did not receive proper support from management, because the respondent's treatment of him was justified. The respondent genuinely found that his management style was confrontational and inflexible and not in keeping with the approach laid down by management.

(2) He was not demoted. The changes in his job title were permissible under Clauses 3 and 19 of the Contract of Employment. They were only proposed changes, there was no breach at the time that he left. Even if there was a breach, it was not repudiatory.

Accordingly, there was no dismissal.

The Law

S57A of the 1978 Act was inserted by Trade Union Reform and Employment Rights Act 1993. It was introduced to comply with the "Framework Directives" on health and safety, Directive 98/391/EEC.

Article 7(2) of the Directive provides:

"Designated workers may not be placed at any disadvantage because of their activities related to the protection and prevention of occupational risks."

It is common ground that the domestic legislative provision should be construed, so far as possible, in a way which is consistent with the Directive.

There is, as yet, little authority on the proper construction of s.57A, now s.100(1)(a) of the 1996 Act. Mr Sheldon has referred us to our judgment in Smith Industries v Rawlings [1996] IRLR 656, but we do not find that case helpful in deciding the instant appeal.

However, we think that some assistance may be derived from the approach of the Court of Appeal in Bass Taverns Ltd v Burgess [1995] IRLR 596, a case concerned with the protection afforded by s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992 where an employee is dismissed for taking part in trade union activities. Such a dismissal is, like a s.57A dismissal, automatically unfair.

The facts in that case were that Mr Burgess was a manager of licensed premises owned by Bass. He was also a "trainer manager", which involved giving presentations to trainee managers and practical training. Further, he was a trade union shop steward.

At a presentation to trainee managers he went, by his own admission, "over the top". He said, in particular, that in matters of health and safety it was the union, not the company, which would fight for them, the company being primarily concerned with profits.

Bass took exception to his remarks. It demoted him from the position of trainer in circumstances amounting to a constructive dismissal. He complained that his dismissal was automatically unfair under s.152.

The Industrial Tribunal dismissed his complaint, finding that the reason for his dismissal was his conduct in abusing the privilege granted to him by the employers to use the meeting as a union recruitment forum.

The Employment Appeal Tribunal allowed his appeal, holding that his dismissal was on grounds of trade union activities.

An appeal by Bass to the Court of Appeal failed. It was held that it was not a permissible option for the Industrial Tribunal to find that dismissal was other than for trade union activities. The implied limitation on those activities contended for by the employer was unsustainable.

However, Pill LJ said at paragraph 14:

"I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term 'trade union activities' in s.58 of the Act."

Earlier in the course of his judgment, Pill LJ cited a passage from the judgment of Phillips J in Lyon v St James Press Ltd [1976] IRLR 215, where he said at paragraph 16:

"The special protection afforded by para. 6(4)' of the 1975 Act

'... to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of the trade union must not be obstructed by too easily finding acts done for the purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate.'

Phillips J added at paragraph 20 in relation to acts claimed to come within the protection:

'We do not say that every such act is protected. For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair.'"

In our judgment a similar approach is appropriate when considering the health and safety activities protected by the former s.57A. The protection afforded to the way in which a designated employee carries out his health and safety activities must not be diluted by too easily findings acts done for that purpose to be a justification for dismissal; on the other hand not every act, however malicious or irrelevant to the task in hand, must necessarily be treated as a protected act in circumstances where dismissal would be justified on legitimate grounds.

The Appeal

The appellant's originally constituted grounds of appeal amounted to a perversity attack on the various findings of the Industrial Tribunal.

However, Mr Sheldon's principal ground of appeal by amendment amounts to a contention that in their approach identified in paragraph 21 of their reasons the Industrial Tribunal was guilty of a double misdirection in law.

First, it is said that the tribunal incorrectly limited the protection afforded by s.57A. It directed itself that the section was not concerned with the way in which the individual carried out his health and safety duties. Since the tribunal found that the respondent never sought to suppress or limit in any way the duties with which the appellant was charged in the promotion of health and safety (reasons, para.20), they concluded that s.57A could not apply.

Mr Lydiard submits that s.57A protects the designated employee from being dismissed for doing no more than his job. The section does not protect an employee who is liable to be dismissed for reasons other than carrying out his health and safety duties. It does not protect him from dismissal on the grounds of incapability or misconduct. It would be a bizarre result if a designated employee was dismissed for carrying out his health and safety activities incompetently and could then claim automatic unfair dismissal under s.57A.

In reality, the tribunal accepted the respondent's case that if the appellant was dismissed, it was by reason of his being an incompetent manager.

The Industrial Tribunal may have used wide words in paragraph 21 of their reasons, but their self-direction was in the context of their factual findings. They had in minds the case where an employer dismissed a designated employee for doing too good a job on health and safety matters for spurious reasons. That was not this case.

In our judgment Mr Sheldon's submission is correct. By excluding consideration of the employer's reaction to the way in which the appellant carried out his health and safety duties the tribunal misconstrued the protection afforded by s.57A.

We return to the approach laid in Burgess. This tribunal found that the appellant had genuine and well-founded concerns about the health and safety record of Caspian's workforce. The respondent accepted the substance of those concerns. As the employee responsible for health and safety matters the appellant took a firm line; he wanted Caspian off site. The respondent's senior management disagreed with that approach; they favoured a policy of help and advice. That was the clash of philosophies. The question for the tribunal was whether the manner in which the appellant approached the problem took him outside the scope of health and safety activities. Given their finding at paragraph 31 of the reasons that he was:

"a man of competence and integrity and that there was nothing that he contemplated or did which was other than in the best interests of the firm"

that would be a surprising finding. However, they never reached that stage in their enquiry. By limiting the scope of s.57A as they did the tribunal misdirected themselves in law and thus fell into error.

However, that is not the end of the matter. Before considering the reason for the dismissal there must first be a dismissal. That brings us to Mr Sheldon's second submission.

He argues that by misdirecting themselves as to the meaning and effect of s.57A the tribunal also limited the scope of their enquiry as to whether or not the appellant had been constructively dismissed.

In considering whether the respondent was in repudiatory breach of the implied term of mutual trust and confidence it was necessary to consider whether the respondent failed to give the appellant reasonable support in his dealings with Caspian. Since the tribunal thought that the way in which he carried out his health and safety duties was not a reason which might entitle him to regard himself as constructively dismissed, it seems to us that this wrong approach permeated the Industrial Tribunal's overall approach to the question of constructive dismissal.

In these circumstances we propose to say nothing about the further grounds of appeal based on perversity, as to which we have not heard argument, since the consequence of our findings must be that the case be remitted to a fresh Industrial Tribunal to reconsider the whole matter afresh in the light of our direction as to the law. We would not wish to trespass on the new Industrial Tribunal's fact-finding role.

Two further matters remain. The first is that both parties have invited us to direct that the case be transferred to the Southampton Industrial Tribunal for their convenience. We accede to that application and so direct.

Secondly, Mr Lydiard applied for leave to appeal to the Court of Appeal after we announced our decision in this appeal. That application is refused.