United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: This is an appeal by Mr Jones, the applicant before the Sheffield Employment Tribunal, against that tribunal's substantive decision, promulgated with extended reasons on 15th October 1998 following a hearing held on 18th September 1998, dismissing his complaint of unfair dismissal brought against his former employer, the respondent Euro Bulk Packaging Ltd.

The Facts

1. The appellant commenced employment with the respondent as a development engineer in July 1993. He was dismissed on 20th April 1998, at which time he held the post of maintenance engineer.
2. He was seen by his colleagues, particularly supervisors, to be a moody and on occasions difficult person.
3. He crossed swords with the Managing Director, Mr Upperdine, in circumstances which almost led to his dismissal in October 1996. Instead, Mr Upperdine was persuaded by the Technical Director, Mr Grand, to retain the appellant under his, Mr Grand's direct management. Mr Upperdine wrote to the appellant telling him of this new reporting arrangement, and commenting on his "alleged" attitude towards other staff.
4. The new arrangement worked well from October 1996 until April 1998.
5. On 1st April 1998 Mr Beaumont was appointed works manager. A memorandum from the Managing Director on the works' notice boards made it clear that this new appointment would involve Mr Beaumont having total responsibility for day-to-day activities, leaving Mr Upperdine and Mr Grand free to concentrate on sales and marketing. The tribunal were satisfied that from that time the appellant was in no doubt that Mr Beaumont was his immediate superior.
6. An incident occurred on Friday 17th April 1998. Mr Beaumont approached the appellant as he was working on a cutting table. He was disassembling and modifying it. Mr Beaumont asked him to go and repair another machine. The appellant refused, saying that he and Mr Beaumont had earlier talked about heath and safety. That was a reference to a visit the previous day by officers of the Health and Safety Executive, who had been concerned about the state of the cutting table.
7. When the appellant refused to switch jobs Mr Beaumont took a firm line. He said he would ask another way. Either the appellant was to stop working on the cutting table and go to work on the other machine or he was to go, meaning leave the premises. The appellant said he would take the second option and he then left.
8. Mr Beaumont treated the weekend that followed as a cooling off period. On the Monday, 20th April 1998, the appellant approached Mr Beaumont and asked to see him. They agreed that they needed to talk. Meanwhile Mr Beaumont had read the appellant's personnel file and seen the references to his lack of co-operation in the past.
9. A meeting then took place between the appellant and Mr Beaumont, attended also by Mr Grand as an observer. The appellant was told that it was a disciplinary hearing; at first he said that he could have a representative present; Mr Beaumont agreed; the appellant then chose not to be represented.
10. Mr Beaumont produced a written record of the events on Friday, 17th April as he had recalled them. The appellant agreed that record. Mr Beaumont asked the appellant why his attitude had been as it was. The appellant replied that he did not think that he should be taking any orders from Mr Beaumont. Mr Beaumont said that as works manager surely what he had asked had been a reasonable request. The appellant responded by saying that he had been a sewing machine mechanic for many years and did not accept that Mr Beaumont's experience in the mining industry gave him authority to tell him about machines. Mr Beaumont pointed out that as works manager he should be in charge of the factory and asked whether the appellant accepted his authority, the appellant said no. In order to be sure Mr Beaumont then asked the question whether, if in his position as factory manager he made a reasonable request, the appellant would accept that request. The appellant said that he would not.
11. At that stage Mr Beaumont could see no point in prolonging the discussion. He dismissed the appellant for gross misconduct.

The Issue

12. It was the respondent's case that the reason for the appellant's dismissal was his failure to obey an order given by Mr Beaumont on 17th April and to acknowledge Mr Beaumont's authority and that the dismissal was fair in all circumstances. The appellant contended that he was dismissed for an inadmissible reason, namely as a person designated by the respondent to carry out activities in connection with preventing or reducing risk to health and safety at work, he was dismissed because he was proposing to carry out such activities (Employment Rights Act 1996 S.100(1)(a)) and/or that he was taking or proposing to take appropriate steps to protect himself or other persons from danger (S.100(1)(e)).

The Employment Tribunal Decision

13. In their substantive decision the tribunal concluded that the reason for dismissal was that advanced by the respondent, namely failure to obey the order given by Mr Beaumont on 17th April and to acknowledge his authority. They found that the decision to dismiss for that reason, which related to the appellant's conduct, was both substantially and procedurally fair.
14. Following promulgation of the substantive decision the appellant applied for a review. That application was granted by the Chairman, Mr D R Sneath, and the original panel was reconvened for a hearing on 27th January 1999. The question which concerned the tribunal on review was whether, in their original decision, they had dealt adequately with the appellant's case that he was dismissed for an inadmissible reason under s.100. They concluded, in a review decision with extended reasons promulgated on 2nd February 1999, that they had and formulated their finding in this way:

(1) The appellant's case, that had he left the machine on which he was originally working on 17th April 1998 others might have interfered with it and suffered injury, was rejected as fanciful. The appellant was not carrying out a protected act under s.100 at the material time.

(2) Even had he been carrying out a protected act, that was not the reason for dismissal. The sole reason for his dismissal was his persistence in rejecting Mr Beaumont's authority.

(3) The appellant was not acting bona fide in putting forward a health and safety reason for rejecting Mr Beaumont's authority.

The Appeal

15. By letter dated 4th June 1999 to the Registrar the appellant indicated that he would not be able to attend this preliminary hearing on medical advice. He submitted a medical certificate diagnosing him as suffering from depression. He asked that the hearing be conducted his absence. That we have done, taking into account his grounds of appeal served with a Notice dated 19th November 1998 and a document described as "Skeleton Arguments" which appears to be a solicitor's attendance note of a consultation with the appellant held on 18th March 1999 at which his appeal to the EAT was considered.
16. The case advanced in the grounds of appeal is that his dismissal was a direct result of his asserting a statutory employment right. That is an inadmissible reason under s.104 of the 1996 Act. There are three difficulties in that contention:

(1) It does not appear to have been the basis on which the case was put below.

(2) Even if it was, there is a clear finding by the tribunal in the review decision that the appellant did not raise the health and safety question in good faith. (cf. S.104(2))

(3) Even had he done so, the tribunal found as a fact that the reason for dismissal was his refusal to obey a reasonable instruction and his refusal to accept Mr Beaumont's authority.

Thus, this line of attack fails on the facts.

17. The "Skeleton Arguments" concentrate on the s.100(1) inadmissible reason. The point there identified is that by issuing a lawful command an employer may circumvent health and safety protection to employees afforded by s.100(1).
18. That simply does not arise on the facts of this case. If an employer instructs an employee to take, or desist from taking, steps which will have the effect of exposing that employee or others to danger, and dismisses the employee for refusing to obey that instruction, it will be open to an Employment Tribunal to find that such dismissal is automatically unfair under s.100(1)(e).
19. However, on the facts as found here there was no danger to other employees had the appellant left the first machine, disassembled, as instructed. The tribunal judged the risk of interference by other staff as fanciful. Moreover, they considered that the appellant was being difficult, as he had in the past, and chose deliberately to challenge the new works manager's authority. On those findings of fact this appeal must fail. It is dismissed.