United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE PETER CLARK:

1. The appellant, Mr Sloan, was employed by the respondent, the Driving Standards Agency, as a vehicle driving examiner. He genuinely believed that it is dangerous for a car fitted with an airbag not to have a headrest fitted to the drivers seats. Statutory regulations which came into force on 6 April 1999 required a headrest for the passenger seat in such a vehicle used for driving tests, but not for the driver's seat.
2. On 3 February 1999 he refused to conduct a driving test where the candidate's car, fitted with an airbag, did not have a driver's headrest. Disciplinary proceedings followed. The charge was that he had failed to conduct a driving test to the standard laid down; had brought the agency into disrepute, involving it in offering a free re-test to the candidate and that his conduct constituted an act of insubordination.
3. Following adequate investigations the area manager, Mr Hulse, held a disciplinary hearing on 15 March 1999. The appellant was adamant. He would not conduct a test in similar circumstances in future. He expressed that view at the time despite being warned by Mr Hulse that failure to give an assurance that he would conduct such a test in future could lead to his dismissal.
4. Faced with the appellant's attitude Mr Hulse recommended to his area manager, Mr Gilhooley, that the appellant be dismissed. Mr Gilhooley passed on a similar recommendation to the personnel director, Mr Evans.
5. Meanwhile, the appellant indicated to Mr Hulse by letter that he was prepared to carry out such a test subject to two conditions;

(1) that he received a statement from the Transport Research Laboratory stating that no danger existed in this situation, and

(2) that he received a letter of indemnity signed by the Minister for Roads indemnifying him from any responsibility should an accident occur.

6. The matter was taken up by the chief executive, who replied saying that there was no statutory obligation for a driver's headrest where an airbag was fitted; that there was no call to involve either the Transport Research Laboratory or the Minister for Roads and that in any event the appellant was indemnified from any personal responsibility.
7. The appellant was asked to sign and return the letter to indicate that he was now satisfied. He did not do so. Mr Evans waited until the appellant had received a reply to a letter which he sent to the Minister. Thereafter, Mr Evans dismissed the appellant by letter dated 19 May 1999.
8. Following his dismissal he brought a complaint of unfair dismissal before the Carlisle Employment Tribunal which sat on 17 September 1999. In a decision with extended reasons promulgated on 8 October 1999 the tribunal concluded that the appellant was dismissed for a reason relating to his conduct and that the dismissal was fair.
9. During the course of the tribunal hearing the appellant sought to conduct an experiment designed to demonstrate the danger to a driver of an opening airbag in the absence of a head restraint. He had set up a self-made contraption, never before tried by him, involving a melon (representing the driver's head) and steering column and wheel and airbag and a triggering device involving a small quantity of explosive. The tribunal did not permit him to carry out his experiment. First, they said, because it would have no scientific validity, secondly because there was risk of damage to the tribunal room.
10. Against the tribunal's decision he now brings this appeal. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go forward to a full hearing.
11. The principal submission made by Mr Sloan to us today is that the tribunal erred in law in refusing to allow him to carry out the experiment which he had planned. He submits to us that it was impossible for the Employment Tribunal to determine the question under section 100 of the Employment Rights Act 1996, that is whether there were circumstances of danger which the employee reasonably believed to be serious and imminent leading him to take appropriate steps to protect another, that is the candidate, from the danger.
12. We have considered that submission in circumstances where we are all satisfied, as was the Employment Tribunal, that the appellant genuinely believes in the cause which he advances. However, that is not enough to found this tribunal's jurisdiction to interfere with the Employment Tribunal's decision.
13. The short question for us is whether the tribunal permissibly refused to allow the experiment to be carried out. For both of the reasons which they gave we think that that was a permissible ruling. In these circumstances there is no arguable point of law to go forward to a full hearing and the appeal must be dismissed.