United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (for Counsel) Messrs Whittles Solicitors Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER
For the Respondents


 


JUDGE PETER CLARK: The Appellant, Mr Kershaw, was employed by the Respondent as a process operator at their Littleborough site from 20 August 1984 until his dismissal on 3 June 1997. At that time he was the GMB appointed Health & Safety representative for that union's members on site. Following his dismissal he brought a complaint of unfair dismissal which came before the Manchester Industrial Tribunal on 13 and 14 January 1998. The complaint was dismissed by a decision with extended reasons promulgated on 9 February 1998. Against that decision he now appeals.

The Industrial Tribunal dealt at length with the facts of the case. We think they can be summarised as follows. On 1 April 1996 the Appellant suffered a minor industrial accident involving his left middle finger while pulling a reel out of shelving in the "lay-up" area. As a result he brought a claim for damages for personal injury against the employer. In February 1997 the parties to that action received a notice of hearing in that case.

As part of his responsibilities as Health & Safety representative the Appellant from time to time requested that risk assessments be carried out. On 3 March 1997 he made a request to Mr Drinnan, the production manager, for a risk assessment in the lay-up area. Mr Drinnan acceded to that request and also to the Appellant's request that he be given a copy of the risk assessment after it had been completed. Having received such a copy the Appellant immediately forwarded it to his Solicitor for use in his own personal injury action. It was later produced in evidence at the civil trial held on or about 18 April 1997.

On learning from the Respondents' Solicitors that a copy of the risk assessment was in the hands of the Appellant's Solicitors Mrs Greenwood, the personnel manager, discussed the matter with Mr Grimshaw, the site manager, and Mr Drinnan. All agreed that the Appellant had the right to a copy of the risk assessment in his capacity as Health & Safety representative, but that he had no right to disclose it to a third party, his Solicitor, and that this might amount to misconduct. Accordingly Mrs Greenwood wrote to Mr Trotter, the full time official on site, advising him that a matter concerning a breach of trust and confidence on the part of the Appellant had come to light and that an investigation was being carried out. If it transpired that the Appellant had used his position as Health & Safety representative to support his own personal claim for compensation, the matter would be treated very seriously.

An investigatory meeting took place, followed by a disciplinary hearing held on 19 May 1997, and presided over by Mr Prescott, the operations and technical director. That hearing continued on 22 May and 3 June. Mr Prescott concluded that a serious breach of trust had occurred, and decided to dismiss the Appellant with 12 weeks pay in lieu of notice. An appeal to the managing director, Mr Keeling, heard on 13 June, was dismissed.

The Industrial Tribunal found that dismissal was fair on the basis that the timing of his request for a risk assessment led the Respondent to perceive him as having been devious. The necessary mutual trust and confidence was undermined. A reasonable employer would conclude that the Appellant had used his position as Health & Safety representative to obtain a risk assessment for the benefit of his own litigation.

In this appeal Mr O'Dempsey takes, broadly, two points. The first is that the Tribunal erred in law in failing to have regard to the duties of a Solicitor to ensure that his client made proper disclosure in the personal injury action and, indeed, the obligation on the Appellant himself to ensure that proper disclosure was made. As to that point we take the view that it is properly to be regarded as a new point, not taken before the Industrial Tribunal below and in accordance with the well-established practice, first to be found in the EAT decision in Kumchyk v Derby City Council [1978] ICR 1116 and most recently affirmed by the Court of Appeal in Jones v Governing Body of Burdett Coutts School (2 April 1998 unreported), we do not think it proper for the point to be taken for the first time in this appeal.

We have however considered the point and we regard it as a bad point. The Industrial Tribunal made it clear in paragraph 17 of their extended reasons that had the factual circumstances been that the Appellant had been dismissed for disclosing copies of risk assessments to Solicitors acting for other members on site, that breach of confidentiality would not have justified dismissal. However the point in this case, so the Tribunal found, was that the Appellant had abused his position in order further his own personal injury claim. He had not disclosed that purpose when seeking a risk assessment from Mr Drinnan.

That brings us to the second ground of appeal which is one of perversity. It is of course equally well established that for an Appellant to succeed on this ground of appeal he must overcome a very high hurdle. They way it is put by Mr O'Dempsey is that the Industrial Tribunal failed to give proper weight to the Appellant's length of service in relation to matters of credibility which arose. They failed to consider whether the actions of the Appellant could undermine trust and confidence in him to such an extent that dismissal fell within the range of reasonable responses.

However the matter is put, and it has been put in every way possible by Mr O'Dempsey, the question we ultimately have to ask ourselves is whether an appeal based on perversity has any real prospect of success at a full appeal hearing. After some debate amongst ourselves we have concluded that it has no such prospect of success. Accordingly the appeal will be dismissed at this stage.