United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Marc Jones (of Counsel) Under ELAAS


 


JUDGE COLLINS:

1. This is an appeal against the decision of an employment tribunal sitting at Shrewsbury. The extended reasons were promulgated on 5^th October 1999; the decision of the tribunal was that the respondents had not dismissed the applicant.
2. On 28 May 1998 the appellant had given one months notice of his intention to leave his employment. It is worth noting that with the exception of a short period of time between March 1985 and October 1986, Mr Warren had been employed by Michelin for nearly 30 years. It is plain to us from reading the papers that Mr Warren was a conscientious, hard working and able employee who had given many years of his life to the service of this company.
3. In his originating application, he states the basis of his claim as being constructive unfair dismissal and health and safety problems. Perhaps the most convenient summary of the way in which he put his case before the tribunal is to be found at page 59 of our bundle. There are 8 paragraphs that are summarised in this way:

i. diabetes which he contracted in 1997

ii. he was asked to study French in his own time and spent many hours doing it and got nothing in return from his employers

iii. he was appointed as a Planning Supervisor on top of his job as a Mechanical Designer and stress because of overwork and pressures at work either triggered off or caused the Project Manager and had health and safety responsibility but was not given the resources to discharge those as he wanted to

iv. the company reneged on its promise to promote him.

v. the accumulation of unreasonable pressures at work caused a breakdown and depression.

vi. there were many breaches of health and safety issues

vii. there were attempts to renegotiate his pension agreement.

viii. in general terms staff relations were really bad.

4. Today Mr Jones of ELAAS, to whom we are very grateful, is assisting Mr Warren and we have to make it clear that the role of this tribunal is very different from that of the employment tribunal. It is the job of the employment tribunal to hear the evidence in the case and to decide the basic facts. In this appeal tribunal, our function is to decide whether or not the tribunal has made any mistakes of law. The purpose of today's hearing is to find out whether there are any reasonably arguable points of law in which case we shall order the case to go on to a full hearing. It is clear from the way that Mr Warren has prepared many pages of argument for our consideration, that he would have liked us to rehear the whole case. He feels that the employment tribunal did not deal with the facts of the case in a way which was appropriate.
5. I ought to mention specifically that Mr Jones sought to argue that the reference to health and safety problems in the originating application is sufficient to cover the claim based on Section 100 Employment Rights Act 1996, which makes a dismissal automatically unfair in certain circumstances relating to health and safety. Relevant to this submission is s100(1)(d) which deals with circumstances of danger which the employee reasonably believes to be serious and imminent and which he could not reasonably have been expected to avert and where he leaves or while the danger persists, refuses to return to his place of work. Our attention has been invited to the decision of this tribunal in Harvest Press Ltd v McCaffrey 1999 IRLR 778 which was a case where it was held that the principles of constructive dismissal should apply equally to Section 100.
6. The facts of that case were very different. It was a case where a co-worker had abused the employee and the tribunal made a finding of fact that the employee did reasonably apprehend circumstances of danger, which were serious and imminent. It does not appear from the reasons of the tribunal that the s100 point was specifically argued. Mr Jones has not suggested today that s100 was ventilated in specific terms before the tribunal. What is suggested today is that there was a presence of CO2 in a room which should have been locked but to which employees had access; that the presence of CO2 in circumstances where it was not being stored securely amounted to danger; that the risk was serious and imminent; that Mr Warren might have been entitled to leave because of that and claim that he was constructively dismissed.
7. The difficulty is that the evidence shows that the problem was one which had been mentioned over a considerable period of time. Although it may have been a matter about which concerns had been expressed and if Mr Warren is right, potentially serious, there is no evidence reported by the tribunal that any danger from the CO2 was imminent.
8. The background of the case was that the appellant was in what the Chairman described as a poor state of emotional health during the hearing. The tribunal was obviously concerned about his health and said so in terms. In paragraph 4 they set out his complaint that the pressures of work triggered off or caused his diabetes and depression. They concluded that there was no evidence that his ill health, whether diabetes or his stress was brought by his work. I am not sure that was entirely correct because there was some medical evidence to the effect that the appellant was suffering from stress which was work related. However the tribunal were entitled to conclude that there was no medical evidence that Mr Warren's diabetes was caused or contributed to by the stress of work and it is of course possible for employees to have stress illnesses which are related to their work without that being the result of any breach of contract on the part of their employers. The tribunal turned to look at the question of whether or not there had been any breach of contract. In paragraph 5, they said:

'There was no evidence before us that the respondent was in breach of the applicant's contract of employment in any way. There were numerous problems and some health and safety concerns relating to the project on which the applicant was working as a co-ordinator. Within the constraints of a busy schedule the respondent acted properly in dealing with these matters. In part, we have no doubt, because of his already stressed condition, the applicant did not see things that way. He became convinced, almost to the point of obsession, that the respondent was acting in reckless disregard of the health and safety of its employees. That was not the case.'

9. Mr Jones has argued that the requirements of the Meek decision have not been complied with because the tribunal have not made their reasoning clear or the facts on which they based their reasons. We disagree. Although the tribunal have put their decision in summary form which expands very little on the summary reasons which had been promulgated on 19 July, the fact that the reasoning is concise does not mean that it is unclear. Paragraph 5 indicates to us that the tribunal heard all the complaints which the applicant made about the safety record at the respondents' premises. In paragraph 1 of their reasons they record that the witnesses in the case gave evidence from prepared statements and that they had two very substantial bundles. It would have been impossible for the tribunal to hear this case over three days without being aware of the extremely wide range of complaints which the appellant has made about the safety concerns at the respondents' premises and the additional burden upon him having to deal with them.
10. It is for us to detect if we can a reasonably arguable point of law in relation to the tribunal's conclusions that there was no breach of contract by the respondents in relation to safety aspects. In our judgment, the conclusion to which the tribunal came was one of fact for them to make and to decide whether there were breaches of contract in relation to safety matters. They decided that there was no evidence to justify that assertion and we have no power to go behind that conclusion.
11. There were additional matters which were alleged to be breaches of contract. An assertion was made that the respondents were in breach of contract in relation to pension matters. The tribunal held that there since there had been problems for several years Mr Warren's departure could not have been the response to them. I think I need say no more about the question of the French study and promotion, since the tribunal held that neither of those gave rise to a contractual expectation and Mr Jones does not try to persuade us to the contrary.
12. In the event, we had the greatest of sympathy for somebody who worked for nearly 30 years for a company and felt obliged to leave because of the accumulation of pressures. We understand Mr Warren's feeling that accumulation of pressures was the result of the way his employers treated him. We remind ourselves that he wrote a letter on 24 June shortly before his notice period was due to expire in which he gave reasons for leaving which do not correspond with the reasons which he subsequently put forward and later wrote a letter saying that he'd been very silly in resigning which is really rather inconsistent with the way it is put now, that he had very good reason for doing so.
13. In our judgment the tribunal had perfectly good reasons for coming to the conclusion they did on the evidence. We cannot detect any reasonable arguable point of law which would entitle this tribunal to interfere with their decision and under the circumstances we are bound to dismiss the appeal.