United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	MS GAIL CARRODUS (of Counsel) Travell Horner & Ptns 56 London Road Southend-on-Sea Essex SS1 1QQ


 


JUDGE C SMITH QC: This is an appeal by Mr Jackson who was the Applicant before the Industrial Tribunal against the decision of an Industrial Tribunal held at Nottingham on 24 February 1997 when the Industrial Tribunal held that the Appellant's application for unfair dismissal should be dismissed.

As appears from the findings of the Industrial Tribunal, the Appellant claimed dismissal from his position at East Midlands Airport with the Respondents as a Duty Manager on health and safety grounds. The Industrial Tribunal held that there was a health and safety committee in place at the time of the dismissal and that since he had not shown it was not reasonably practicable for him to have raised the matters about which he was complaining through that committee, he could not bring himself within section 100(1)(c)(ii) of the Employment Rights Act 1996 with the result that section 108(1) applied in his case, so that since he had not been continuously employed for two years at the time of his dismissal, the Industrial Tribunal had no jurisdiction to hear his complaints.

In outline only, as appears from the findings of fact of the Industrial Tribunal, the Appellant had joined the Respondents as a Duty Manager in August 1996, based at East Midlands Airport, working under Mr Haigh. After only three weeks of employment things went wrong since in the fourth week the Appellant was very unhappy about the very long hours he was required to work and, secondly, about his being required to drive "airport side" without the necessary permit, as he alleged. He complained to Mr Collins, the Station Manager, in a letter dated 11 September 1996 about the long hours and a day or so later or, indeed, much the same time, orally to Mr Collins, about being required to drive airport side. When the situation repeated itself a day or so later, he reported it orally again through the same channels. It appears that in so doing he complied with the rules laid down in the Respondents' rule book.

The Industrial Tribunal held that "tiredness" in air-side staff and driving air-side without a permit by such staff were matters of health and safety concern. However, having considered the law which the Industrial Tribunal set out in the terms it did in paragraphs 7 to 9, the Industrial Tribunal went on to find at paragraph 11 that:

"There was a health and safety committee machinery established at East Midlands Airport.

12. It was reasonably practicable of the applicant to have raised the question of his hours and consequent tiredness and lack of concentration through that machinery rather than write to Mr Collins his letter of 11 September 1996.

13. It was reasonably practicable for the applicant to have raised through that machinery the perceived need on his part to drive air-side without a permit during the night shifts of Tuesday and Thursday.

14. He told us the reason for not pursuing any enquiries through the health and safety machinery was his tiredness. Moreover, and he put this forward as rendering it not reasonably practicable for him to do so, he was not aware of that machinery being in existence.

15. We conclude that his lack of awareness of that machinery did not render it not reasonably practicable for him to raise the matter by that means. He is an experienced person in health and safety matters (some 7 years) and a health and safety notice was displayed in the work place. Moreover, his tiredness did not prevent him from writing his letter to Mr Collins on Wednesday or reporting his concerns about driving air-side to Mr Collins on Wednesday and Mr Simpson on Friday.

16. Accordingly, the applicant has failed to overcome the second hurdle required by Section 100(1)(c)(ii) and we therefore have no jurisdiction to go further."

It is right to say that although the Industrial Tribunal did not hear evidence from the Respondents, we are told and we accept that they heard evidence from the Appellant and also Mr Haigh and Mr Collins, since he called the latter as witnesses as part of his case before the Tribunal.

It is, of course, against that decision that Mr Jackson appeals. We should explain, first of all, that for very good reasons which he has courteously explained to us, Mr Jackson has not been able to be present at the hearing of his appeal but we have, of course, considered carefully all the material he has placed before us. We have had the benefit of a very skilful and balanced submission by Counsel for the Respondents, Ms Carrodus.

We repeat that it is against that decision that Mr Jackson appeals. However, it is important to point out straightaway that the Appellant was restricted and has been restricted as to the grounds of appeal which he could raise on a full hearing of this appeal. In particular, he was refused leave to argue that he had not made a fully informed acceptance in the course of his cross examination at the Industrial Tribunal when he accepted the Respondents' claim that there was a safety committee. It was held by the Employment Appeal Tribunal on the preliminary hearing that this was not an arguable ground of appeal and, of course, we have not considered it. Indeed, the Appellant was restricted to the particular grounds of appeal that were identified by the Employment Appeal Tribunal on the hearing of his preliminary application. Thus, additionally, we should state that there is no ground of appeal before us on the grounds of perversity against the finding by the Industrial Tribunal that, although they found as a fact that the Appellant did not know of the existence of the health and safety committee, that, nevertheless, he had not established that it was not reasonably practicable for him to have raised the health and safety complaints by that means, ie, by referring it to the committee. Accordingly, we should emphasize that we have not heard any argument on this point and have not considered in any detail the evidence which was before the Industrial Tribunal to enable them to reach that conclusion in the way they did as we have described above. Save for some remarks we will make in conclusion with regard to this appeal, we say nothing further about that aspect of the matter, save to say that we suspect that this is the gravamen of the Appellant's real complaint but we cannot consider it as it does not form a ground of appeal before us.

That leaves for our consideration what are important but rather technical objections to the decision. The submission is made in the amended notice of appeal that as a result of changes between the wording of s.108(3) of the Employment Rights Act 1996 and s.64(3) of the Employment Protection (Consolidation) Act 1978, it is no longer the law that an employee who does not have qualifying service under s.94(1) of the Employment Rights Act 1996 and who seeks to rely upon a health and safety reason as the reason for his dismissal, has the burden of establishing that reason on the balance of probabilities. In our judgment, having carefully considered the decision of the Court of Appeal in Smith v Hayle Town Council [1978] ICR 996 and, in particular, the reasoning of Eveleigh LJ at page 1002 between D and G, as followed by the Employment Appeal Tribunal in the fairly recent decision of Tedeschi v Hosiden Besson Ltd EAT/959/95 we are quite satisfied that the difference between the wording in s.64(3) viz.:

"Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason"

and the wording s.108(3) of the 1996 Act viz:

"(1) does not apply if"

has not affected any change in the burden of proof which remains for the employee to establish on the balance of probabilities. As Eveleigh LJ put it, considering the legislation then current in the appeal before him at page 1002:

"Once the employer has established paragraph 10, namely, that the employee has not been employed for 26 weeks, the employer has, as it were, put up an obstacle to the employee obtaining advantage under paragraph 4. So paragraph 11, in my view, is worded to the intent that, and by the nature of its being an exceptions paragraph, the burden of proof must be upon the employee. And I have come to that conclusion in this case."

In our judgment exactly the same reasoning applies, mutatis mutandis, to s.108(3) of the 1996 Act, the current legislation, once the employer has established that, on the face of it, the Industrial Tribunal does not have jurisdiction within s.94(1) of the Employment Relations Act 1996, Rights Act 1996, because the employee has not the necessary two years' qualifying service (as was the case here) then it is for the employee to bring himself within s.108(3) which like paragraph 11 of Schedule I to the 1974 Act and like s.64(3) of the 1978 Act, is an exceptions subsection and thus, in accordance with the reasoning of the Court of Appeal, the burden of proof lies on the employee to bring himself within the exception. We should mention that we have considered the case of Shannon v Michelin (Belfast) Ltd [1981] IRLR 505 where the Northern Ireland Court of Appeal reached a similar conclusion on the basis of similar reasoning.

Accordingly, we accept the submission, well made to us by Counsel for the Respondent, on this point. In our judgment, the Industrial Tribunal was right to follow Tedeschi on this point.

The next point that is taken is that even if the general burden of establishing dismissal for a health and safety reason was on the Appellant, there was nevertheless no burden upon him to establish that it was not reasonably practicable for him to raise the matters of complaint by those means. It is submitted that on the proper construction of s.108 and s.100(1)(c)(ii) the burden of proof is neutral. We cannot accept this submission. In our judgment once it is accepted that the burden of proof to establish the reason lies on the employee, it must follow that it is for him to establish each of the necessary elements which together establish such a reason, one of these being to establish that it was not reasonably practicable for him to raise the matter through the health and safety committee where such a committee exists, as the Industrial Tribunal found as a fact that it did in this case. Just as it is for an Applicant to establish that it was not reasonably practicable for him to present a complaint for unfair dismissal within three months, see s.111(2)(b) of the 1996 Act, so the burden rests upon him in connection with similar words in s.100. The fact that the words "where it is satisfied" appear in s.111(2)(b) but not in s.108(1)(c)(ii) does not, in our judgment, cause the employee to be relieved of the burden of proof, having regard to the fact that he carries the overall burden to bring himself within the exception provided by s.108(3)(c) by establishing that he has been dismissed for a health and safety reason within s.100.

Accordingly, we must reject this ground of appeal.

We have also considered ground 3 in the amended notice of appeal but this is clearly predicated upon the assumption, which we must reject, that the burden of proof on reasonable practicability is neutral and thus gives rise to no separate issue for our consideration.

In the light of our conclusions, we have looked again at the decision of the Industrial Tribunal and have concluded that the Industrial Tribunal has found facts which, in the absence of any challenge on the grounds of perversity, they were entitled to find and has correctly applied the law relating to what the Appellant had to prove and as to the burden of proof. We do say, in conclusion, that we regard this as in many ways being a hard case and in some ways one which highlights the difficulties which the legislation seems to place in the way of an Applicant seeking to establish dismissal on grounds of health and safety reasons. In particular, it may be that had we had to consider afresh the issue of reasonable practicability, we might have reached a different conclusion. We express no concluded view on the matter. However, for the reasons we have given, on the limited grounds of appeal which have been before us, we must conclude that this appeal must be dismissed.