United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Mr Hoyle, the Applicant before an Employment Tribunal sitting at Nottingham, against that Tribunal's decision, promulgated with Extended Reasons on 18 February 1999, dismissing his complaint of unfair dismissal against his former employer, the Respondent, Nottingham Ambulance Service NHS Trust.

The Appellant was employed by the Respondent as an ambulance driver in the patient transport service from June 1995 until his dismissal on 24 February 1998.

The Tribunal found that the events leading to his dismissal were as follows. On 20 November 1997 the Appellant wrote a letter to his station officer, Russell Smith, requesting additional ramps to be made available at hospital sites. He had earlier made a similar complaint which had resulted in further ramps being provided. He wanted more. The tone of the letter was said by the Tribunal to be confrontational.

On 24 November 1997 the Appellant wrote to Mr Smith, again in a confrontational style. He there complained about the overtime expected by the Respondent and accused his employer of bullying. He threatened court or tribunal action. In that letter he complained of the workload, that crews were tired, raising a safety issue and complaining that schedules could not be maintained without speeding; contrary to section 89 (4) Road Traffic Offenders Act, that is the Road Traffic Act.

On 26 November he wrote again, referring to an incident when ramps were not available and indicating that unless he received a written reply to his letter of 21 November (sic) stating the Respondent's intention to rectify the situation promptly, he would inform the relevant enforcing agencies without delay.

Following a meeting held on 28 November 1997 with Mr Smith the Appellant was advised to raise his complaints with his Safety representative who could in turn raise them at the next Health and Safety Committee meeting.

What the Appellant did was to report an issue concerning loading stretchered patients on to ambulances without ramps or lowering suspension to the Health and Safety Executive, and report the Respondent to the Police for imposing schedules which encouraged drivers to exceed the speed limits. Both complaints were investigated by those respective agencies and quickly rejected.

The Respondent then enquired into those reports made by the Appellant to the Health and Safety Executive and to the Police. A meeting was arranged for 13 January 1998. On that day the Police informed Malcolm Hinchley, Assistant Director of Operations, that they did not propose taking any action against the Respondent.

The Appellant was asked to provide a written statement to the Respondent but declined to do so on the grounds that the matters were "sub judice". He was later informed by the Police and Health and Safety Executive that no action was to be taken against the Respondent.

A disciplinary hearing took place before a panel of three Managers on 24 February 1998. A decision was then taken to dismiss the Appellant. The stated reasons for dissmissal were set out in a letter to the Appellant dated 4 March 1998 as follows. The matters were treated cumulatively:

"i) sending letters to managers which were confrontational and intimidating,

(ii) after appropriate advice from his manager Russell Smith, failing to follow the respondent's procedures for dealing with matters relating to health and safety, management and grievances,

(iii) failing to co-operate with an internal investigation,

(iv) making an ill intentioned report to the Police and Health and Safety Executive which could have resulted in a lowering of trust and confidence in the respondent."

The Appellant then exercised his right of internal appeal. That appeal was heard by the Chief Executive, Mr Handy, and two non-executive members of the Trust on 19 April 1998. The panel upheld the dismissal decision.

The first question for the Employment Tribunal was what was the reason for dismissal? The Appellant contended that he was dismissed for an inadmissible reason under section 100 of the Employment Rights Act 1996, that is, reporting genuine Health and Safety issues to an outside body. That contention was rejected by the Employment Tribunal, which found that it was reasonably practicable for the Appellant to raise his concerns through his Safety Committee representative (section 100(1)(c)(ii)) and that he did not reasonably believe himself to be in serious and imminent danger for the purposes of section 100(1)(e).

Further, even had he brought himself within section 100(1)(a) – (e), the reason or principal reason for his dismissal was as set out in the Respondent's letter of 4 March 1998. That was a reason relating to conduct.

Having so found the Employment Tribunal concluded by a majority that the dismissal was fair under section 98(4). There was no defect in procedure. The majority held that dismissal in these circumstances fell within the range of reasonable responses; the minority member did not, and would have found the dismissal unfair for that reason. The majority view prevailed and the complaint was dismissed.

In this appeal Mr Hoyle, who represents himself, takes a number of points. First he submits that the Tribunal's decision amounts to a perversion of the course of justice. It gives rise to the fear that anyone who has a reasonable belief that an offence is committed by his employers, when he is in employment, will not take that fact to the authorities for fear of victimisation. He draws attention to the terms of the Public Interest Disclosure Act 1998, although that statute was not in force at the material time.

Secondly, he draws attention to a finding by the majority at paragraph 30 of the Employment Tribunal's Reasons that if the outcome of his referral to the outside agencies had been different, then the disciplinary action may have had a different conclusion.

It seems to us that the principal difficulty in this appeal which, of course, must be on a point of law only, is the finding by the majority among other things, at paragraph 29 of the Reasons, that the Respondent was entitled to conclude that his referral to the outside agencies was ill-intentioned. There has been some debate about that finding before us today, but it seems to us that that was a critical finding of fact by the majority, following a four-day hearing in this case.

If the Appellant had made a genuine complaint to the outside bodies and as a result had been dismissed, it would have been open to the Tribunal to so find and to conclude that the dismissal was unfair in those circumstances. However, they accepted the Respondent's case as to his motives in making those complaints.

Mr Hoyle further submits that as to the third of the grounds for dismissal, that is his failure to co-operate with an internal investigation, he was entitled to decline to make a statement because he had been so advised whilst the Police and Health and Safety Executive enquiries were continuing. Again, it seems to us that that was a matter for the Tribunal to consider and having done so, they upheld that ground for dismissal. Again, we do not think it right to interfere with that finding of fact.

Mr Hoyle has applied to us for the Chairman's Notes of Evidence. However, we do not make such an order simply for the purpose of re-trying the factual issues and ultimately, despite his reference to decided cases and statutes, including the Human Rights Act 1998 which again was not in force at the relevant time and still is not, we have come to the conclusion that this appeal is really one of fact, not law. There is no challenge to the Tribunal's rejection of the section 100 Inadmissible Reason for Dismissal.

The question in this appeal is whether the majority were entitled to conclude, on their findings of fact, that dismissal fell within the range of reasonable responses. We are quite satisfied that they were entitled to so find and in these circumstances we must dismiss this appeal.