United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR REES (of Counsel) Instructed by: Messrs Freer & Archer Solicitors 16-18 Millstone Lane Leicester LE1 5JN


 


JUDGE PETER CLARK

1. The Appellant, Mr Vaghadia, was a long standing employee of the Respondent, having commenced his employment as a moulder on 8 February 1971. In the summer of 1999 the Respondent agreed an alcohol policy with the recognised unions to be applied to its workforce of some 350 people at its Leicester site.
2. All employees, including the Appellant, were given copies of the policy which came into effect on 9 August 1999. That policy provided for employees to be breath-tested if it appeared that they had taken alcohol when at work The policy continues by alerting the employees to this possible outcome:

"An employee who has not voluntarily admitted a problem, (that is an alcohol problem), and is found to be above the legal alcohol limit for driving a car, will immediately be suspended without pay pending a disciplinary hearing, to be convened at Stage 4".

Stage 4 deals with cases of alleged gross misconduct which can in turn lead to summary dismissal.

3. On 18 August 1999, the Appellant went to see the Production Manager, Mr Smith, about a wages query. Mr Smith thought he could smell alcohol on the Appellant's breath. When asked, the Appellant confirmed that he had had what he said was a pint of beer before starting his shift at 2pm.
4. As a result the Appellant was taken to the surgery, with his shop steward, to give a specimen of breath. He was warned that if he was found to be over the limit, or refused to give a specimen, he would face disciplinary proceedings.
5. Given a number of opportunities to provide a breath specimen, the Appellant failed to complete the test. He did not blow for long enough. The question then arose whether his failure amounted to a refusal or was due to inability to complete the test due to his asthmatic condition. He was seen by the company doctor, Dr Byer, who consulted the Appellant's medical records. That doctor concluded that there was no medical reason why he should not be able to complete the test.
6. Disciplinary proceedings followed. On 20 August the Operations Director, Mohinder Singh concluded that in the light of Dr Byer's opinion, the Appellant had refused to provide a specimen of breath. He dismissed him. A first appeal to the Marketing and Sales Director, Mr Croysdale, failed. So too did a second appeal to Miss Williams, the Human Resources Director, heard on 9 November. She took into account Dr Byer's opinion and the fact that the Appellant was able to cycle to and from work. At each stage in the process, the Appellant had trade union representation.
7. Meanwhile, on 2 November, the Appellant presented a complaint of unfair dismissal to the Employment Tribunal. That claim was resisted by the Respondent and came on for hearing before an Employment Tribunal sitting at Leicester, (under the chairmanship of Mr D Price) on 26 January 2000. By a decision with extended reasons dated 18 February 2000, the Tribunal dismissed the claim.
8. Having set out the facts, summarised above, the Tribunal approached the matter in this way:

(1) They found that the reason for dismissal, refusal to obey a reasonable order, that is to take a breath test, fell into the category of conduct, a potentially fair reason for dismissal.

(2) They reminded themselves of the words of section 98(4) Employment Rights Act 1996 and the relevant ACAS Code of Practice and expressed their conclusions on that question at paragraph 7 of their reasons thus:

"We are satisfied that:

a) The respondent company followed their procedure in seeking a specimen of breath for testing.

b) The dismissing officer (Mohinder Singh) genuinely believed the applicant refused to provide a specimen based on good evidence. The only issue he had to decide was whether the applicant was medically unable to provide one. In order to resolve the issue, he had the unchallenged evidence of Dr Byer who had examined the applicant and had consulted his notes on the applicant's medical history.

c) The appeals procedure was fair. At neither hearing did the applicant bring evidence to question or contradict the evidence of Dr Byer which, he knew, the company relied upon.

d) It cannot be said that the decision to dismiss was unfair. The applicant was aware of the company's policy regarding alcohol. On 18 August, his breath smelt of alcohol and he behaved in a way which suggested he had been drinking. The company were entitled to ask for a specimen of breath for a test. When he refused, the company had no alternative other than to dismiss him."

9. In these circumstances, the Tribunal found that the dismissal was fair. Against that decision this appeal is brought. This is a Preliminary Hearing, held to determine whether or not the appeal raises any arguable point or points of law which ought to go forward to a full inter partes hearing.
10. Prior to this hearing a Skeleton Argument prepared by the Appellant's solicitor, Mr Freer, who appeared on his behalf below, was lodged with the Appeal Tribunal. Having set out a summary of the factual background, it is then submitted that the Employment Tribunal in this case fell into error by specifically declining to follow the approach of the Employment Appeal Tribunal, Mr Justice Morison presiding, in the case of Haddon –v- Van den Burgh Foods (1999) ICR 1150. Reliance was also placed on another decision of the Appeal Tribunal in which Mr Justice Morison presided: Everitt –v- British Telecommunications PLC (1999), and the decision of Lord Johnston in Wilson –v- Ethicon Ltd (2000) IRLR page 4.
11. Those cases caused some fluttering in the dovecotes, but have now been overruled by the Court of Appeal in the conjoined appeals of Foley -v- The Post Office and HSBC Bank PLC -v- Madden reported thus far only in The Times newspaper, August 17, 2000. The Court of Appeal in that case firmly restored the law as we have always understood it, more particularly to be found in the seminal judgment of Mr Justice Browne-Wilkinson in Iceland Frozen Foods –v- Jones (1983) ICR 17.
12. In these circumstances, Mr Rees of Counsel who today appears on behalf of the Appellant, recognises realistically that he is unable to advance any argument that the Leicester Employment Tribunal fell into error as a matter of law in their approach to this case. In these circumstances, sympathetic though we are to an Applicant, who had 28 years service with his employer which came abruptly to an end in the circumstances we have described, we regard ourselves as bound by clear Court of Appeal authority and we must accordingly dismiss this appeal.