United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR QUIGLEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there are arguable point of law raised in a Notice of Appeal against an decision of an Industrial Tribunal held at London (North) on 17 March 1998.

By their decision the Applicant's complaint of constructive unfair dismissal was dismissed. He had made that complaint against his former employers, the Capital Hotel (Knightsbridge) Ltd, the Respondents in the Industrial Tribunal and the Respondents to this appeal.

The Industrial Tribunal noted that the Applicant had less than two years continuous service and therefore for the purpose of the hearing, they confined themselves to dealing with the question as to whether the Applicant's contention that he had resigned because of his employers failure properly to deal with his complaints that there had been breaches of the statute in relation to him, was made out or not.

The first issue which the Applicant raises in support of his constructive dismissal was that he had been transferred from working as a waiter in the restaurant to working as part of a team in relation to the delivery of room service. His case before the Industrial Tribunal was that whilst working in the restaurant he received, on a regular monthly basis, a due proportion of the tips which customers had left, which were placed in the "tronc", whereas when he worked in the room service team (not delivering the room service himself but preparing and taking the orders and preparing the trays) he received no tips.

The Industrial Tribunal's conclusion was that the employers were not responsible for the tips given by customers to employees. On this appeal, it has been argued that the Tribunal may have erred in law in arriving at that conclusion, having regard to a decision of the Court of Appeal called Nerva & Others -v- RL & G Limited [1997] ICR 11. We consider that that point is arguable. Much will depend, as it seems to us, on the contract or rather the particulars of the terms of employment, which the employers said had been sent to the Applicant, although the Applicant said that he had never received it.

The second point which was made before us, was that the Industrial Tribunal had misdirected themselves in relation to the Health & Safety at Work issue. Here the Applicant was saying that one of the reasons why he had resigned, was because he had complained to his employers about a Health & Safety at Work issue and it was for that reason, their failure to deal with his complaints, that he resigned.

In the course of giving their judgment, the Tribunal held that the Applicant had not proved on the balance of probability, that there were any breaches of Health & Safety matters at his place of work. So it was argued that the Industrial Tribunal had failed to apply the correct test. The issue was not whether there had been a breach of Health & Safety matters at the place of work, the issue was whether a complaint had been made in relation to them and whether that was properly dealt with and whether there was any failure in relation to it which led to the resignation. It seems to us that that criticism is unfair.

During the course of the case, we have no doubt that the Applicant gave evidence in relation to matters which he believed showed that he was expressing a proper concern about issues of Health & Safety, but it seems to us that the Tribunal was entitled, as those allegations had been made, at least to deal with them. It would have been unfair to leave the allegations hanging in the air. It does not follow that because they have dealt with that issue that they have somehow taken their eye off the ball when applying the criteria. It is clear, as it seems to us, from paragraph 10 of the Tribunal's decision that the reason why this part of the complaint failed, was because they were satisfied on the facts that the Applicant had not brought by reasonable means to the attention of the employers, circumstances that he reasonably believed was harmful or potentially harmful to Health or Safety in circumstances of danger which he believed to be serious or imminent. Those were the words taken from the statute and represent the correct test. Accordingly, on that second question, we would not permit the matter to go forward to a full hearing.

The third main complaint, was that the Industrial Tribunal should not have dismissed the application for unfair dismissal, so as to preclude Mr Soudiere, the Applicant from pursuing such complaint in due course if the decision in Seymour Smith, which is awaited, entitles him to bring his complaint. He accepts that he was confined, as the law stands at present, to dealing with his case on a limited basis, but he was entitled to reserve and have reserved the right to pursue his unfair dismissal complaint, without having to establish any breaches of the statutory matters to which I have referred.

That issue is something which will have to be considered at the full hearing. I would not have been inclined to have allowed it through on that point alone, but having regard to the issue in relation to tips and the transfer from restaurant to room service, I think it appropriate that it should be included in the issues.

I should say finally, that the first point which was made, which we did not allow to be developed, was a bad one. It was being submitted to us that the Tribunal were wrong to find that the Respondents had supplied the Applicant with the terms and conditions of his employment within the statutory framework, when all that the employers could say in evidence was that their practice and procedure was to send out such documents, and that they had no reason to believe that it had not been followed in this case.

Even though the applicant said that he had not received such a document, it seems to us the Tribunal were plainly entitled to infer, if that was their view, on the facts that such a document had been sent. Therefore there was material on which they were entitled to arrive at their conclusion and therefore it was not a point of law with which this Court should be concerned.

On that basis, the matter will proceed to a full hearing. It seems to us that there is no need for notes of evidence in this case, but there is every need for the EAT to be supplied with the contract of employment. I should say that if it becomes clear from the contract of employment to which reference have been made in the Industrial Tribunal's decision, that tips were treated as a discretionary matter, entirely at the discretion of the managers who were managing particular departments, and that the Industrial Tribunal have dealt properly the question of tips, it may be that at the full hearing, the question of costs will arise. We are giving leave to argue the "tips point", as I shall call it, on the basis that there is no express term in such a document which deals with the issue. As I say, if there is, and we should have been shown it, then a question may arise as to whether there has been an unreasonable step taken in pursuit of this appeal. I do not say this in terrorem of the Applicant, I say this because it seems to me that this document should have been made available to us, if there was something in it which demonstrated that there was no merit at all in the point which has been raised in relation to tips. We leave it in that way for the time being. No notes of evidence are required. Estimated time for this appeal, half a day, it should be listed as category C.

I have looked at the Respondent's PHD form, for which we are grateful. It seems to us that there are no further directions to be given.