United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TIMOTHY GRACE (of Counsel) Instructed By: Mr R C Hall Messrs Steggles Solicitors Crown Buildings 121 A Saughall Road Blacon Chester CH1 5ET
For the Respondents	MR MICHAEL CHAMBERS (of Counsel) Instructed By: Mr D Jones The Chief Legal & Personnel Officer Conway County Borough Council Bodlondeb Conway LL32 8DU


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the appeal of Miss Helen Jones in the matter Jones against Conway County Borough Council. Miss Jones brought a case for unfair dismissal. That was the only claim she made.

1. The period of employment which she asserted was from 24 June 1996 to 19 June 1998 and it is important to notice that that is a period of less than two years. Why that is important emerges from Section 108 (1) of the Employment Rights Act 1996 which reads:

"(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

That is the amended version. At the time when Miss Jones made her case the requirement was of two years.

2. On 7 September 1998 Miss Jones lodged her IT1 claiming unfair dismissal. There was no claim for breach of contract, there was no claim for sex discrimination and the only reference to health and safety matters was as follows. It said in her box 11, "Please give details of your complaint". She filled in some words, saying:

"Appeal against dismissal for frustration of contract.

November/December 1997

I was involved in raising a Health and Safety issue regarding a large piece of machinery used on public highways. I then became subjected to harassment, victimisation and bullying by my transport manager for involving the union in a Health and Safety issue."

3. On 29 September 1998 the employer, the Conway County Borough Council, put in its IT3 and the Health and Safety ground was denied. They said:

"It is denied that the dismissal of the Applicant from the employ of the Respondent was in any way connected with a Health and Safety issue raised by the Applicant on 10^th December 1997. The matter raised was fully investigated and was found to have no substance, except that it revealed a possible disciplinary offence committed by the applicant and a fellow worker, a matter which was investigated but not pursued."

And they give a different reason for the dismissal. They said:

"The applicant was dismissed on the grounds of her long-term absence from work due to ill-health and the dismissal was reasonable in all the circumstances.

4. There then followed some four days of hearing, between 2 March 1999 and 25 May 1999, and at least nine witnesses gave evidence, as it would seem, orally, and on 11 June Summary Reasons were given. Presumably there was a request for Extended Reasons and on 5 July 1999 there were Extended Reasons sent to the parties and the decision was as follows:

"The unanimous decision of the Tribunal is that the Applicant was not dismissed in breach of sections 100 and 104 of the Employment Rights Act 1996. The application for unfair dismissal under section 94 is adjourned pending the decision in Seymour-Smith."

5. To dip into the facts as found by the Tribunal, they found facts which they describe at paragraph 3 (a), (d)-(e), (g)-(k), (p), (s)-(y), (bb), (ff),(gg), (jj),(kk) and (mm):

I interpose to say that I am not reading, by any means the whole of the findings of fact but these are the more important ones:

"(a) The applicant was employed by the respondents as a mechanic plant fitter at Mochdre plant shop which was one of the plant shops operated by the respondent local authority. The applicant was employed from the 24^th June 1996 until the 19^th June 1998 when her Contract of Employment was ended after having been given the one week's notice to which she was entitled."

(d) The respondent operated a piece of equipment, which was known as a Bomford Flail. This was a tractor attachment, which enabled the respondent to cut hedges and grass.

(e) On the 26^th November 1997 the Bomford Flail was in the Mochdre works at the request of ground maintenance. There was [an] urgent need for the machinery to be repaired and back in operation. Page 3 of 'R3' showed the job card; the reported defect was that new flails needed fitting. The work was carried out Mr (sic) the applicant and Mr John Dunn. From what we heard there was a difference of opinion as to how the flails should be attached. Miss Jones maintained that the flails should be attached using spring washers and lock nuts. She was also unhappy that when they ran out of new bolts that old ones were used. Mr Dunn's view was that following custom and practice it was permissible to use lock nuts only and to use old bolts as appropriate. From what we heard it appeared to be custom and practice to use this method…."

(g) The flail was returned to the depot on or about the 5^th December 1997. …"

(h) On the 9^th December 1997 staff from grounds maintenance arrived to collect the flail only to find the work had not been carried out, the defects were rectified immediately by the applicant as per job card 2. The applicant replaced nuts with spring washers, filed out a hole for bolt on badly flail bracket, replaced flails and tightened them all up. The job card did not indicate how many spring washers were fitted.

(i) There was subsequently a complaint by Mark Earp regarding the standard of workmanship on repairs in general leaving the Mochdre plant and in particular the Bomford Flail referred to above.

(j) Mr Trigg [the Transport Manager] carried out an investigation, he was able to discover who had worked on the repairs to the Bomford Flails, and discovered there had been a disagreement about the method of fixing. It was alleged that the applicant had refused to carry out Mr Dunn's instructions.

(k) On the 15^th December 1997 the Bomford Flail was inspected at the Tan y Goppa depot Abergele in the presence of Mr Earp, Mr Price, Mr Dunn, the applicant was not present although she had been invited to attend. Mr Trigg at this time felt that 30 of the flails had been correctly fitted (those fitted by Mr Dunn) and six incorrectly fitted (those fitted by the applicant). They also discovered that it was necessary to fit a new safety skirt, which was subsequently dealt with.

(p) There then followed a number of incidents, which were not in our view related to health and safety matters. The main thrust of these incidents related to time spent of work, method of work and disagreements between the applicant and Mr Dunn. …

(s) From what we read and heard it was clear that the applicant's relationship with Mr Trigg deteriorated, in our view it deteriorated as a result of a difference of opinion as to how certain works were to be carried out and over the time it was taking to carry out repair works. There was general concern about the productivity at the Mochdre plant shop. Mr Trigg clearly felt the applicant took too long on certain repairs. …"

(t) We then heard evidence about a series of meetings where the applicant alleged that Mr Trigg behaved in an intimidatory manner, standing over her watching her work, evidence was vague in this respect and it was difficult for us to decide whether it actually happened. "..

And then, also in (t), perhaps more importantly:

"What was clear was there was no mention of health and safety in relation to those particular incidents."

(u) It was clear that between the 12^th and 20^th January the applicant and Mr Dunn were advised there would be no disciplinary action in relation to the complaints over the Bomford Flail.

(v) [An important paragraph] There was a health and safety representative appointed for the Mochdre plant.

(w) There was a final meeting on the 13^th February which was again heated, the applicant provided a detailed note which was handed in when the matter was dealt with by personnel, see pages 20 and 21 of 'R1'.

(x) The Bomford flail incident was referred to because of the difference of opinion in the method of fitting the flails. Mr Trigg it has to be said maintained that custom and practice dictated that old bolts could be used if satisfactory and there was no need to use spring washers with a self-locking nut. He relied on custom and practice, it clearly did not fall into line with the manufacturers recommendations.

(y) As a result of the meeting on the 13^th [February] the applicant left her employment clearly upset and never returned to work other than for grievance and disciplinary hearings.

(bb) … She believed Mr Trigg saw her as a troublemaker and that he was under the impression that the applicant had put in a complaint to the Union about the Bomford Flail, which was clearly not the case. She then felt she had been victimised from then on.

(ff) The parties met on the 8^th April and it was agreed that the parties would attempt to resolve the agreement by informal means … It was made clear that if the allegations were substantiated it could result in the dismissal of Mr Trigg.

(gg) Mr Doherty [Director of Contract Services] expected the applicant to return to work, she did not, in fact she provided a sickness certificate confirming that she should refrain from working for a further thirteen weeks. …"

Then there is reference to a grievance procedure which begins in paragraph jj:

"(jj) The grievance procedure formally started on the 1^st June when the respondents took detailed evidence from the applicant. The first meeting lasted virtually the whole of the day. …

(kk) The grievance meeting concluded on the 5^th June. The grievance meeting also turned into a disciplinary hearing regarding the applicant's capability. It was clear from the evidence that we heard the respondents were anxious to deal with the applicant's continued employment before she had the necessary two years continuous employment to present a claim for unfair dismissal.

(mm) By further letter of the 10^th June 1998 the applicant was dismissed with a week's notice ensuring her contract would end on the 19^th June 1998 some four days before she would have had two years continuous employment.

The Tribunal, in their later paragraph 6, said this:

"6 It was for the applicant to prove on the balance of probabilities that she was dismissed for a reason falling within section 100 or 104. The purpose of the legislation is clear, it is to protect employees who raise matters of health and safety. In this case the applicant maintained she was concerned because in her view the flails were not being correctly attached to the hedge cutting device operated by the respondents. The applicant did not raise this matter directly either with a health and safety representative or indeed through her Union. In our view the real dispute was simply as to the method of attaching not as to the health and safety issues. The concerns relating to the Bomford Flail were in our view related to the way the work was carried out was concerning concern (sic) to those that operated the machinery. We had no doubt that applicant was concerned about the method of fixing, the respondents on the other hand were satisfied that the method being used was one that had been used for a long time was satisfactory …"

In the course of a long paragraph 6, they mentioned that Mr Doherty attempted to look into matters. He set up a formal grievance procedure and, continuing paragraph 6:

"..conducted a lengthy investigation and on the evidence available to him he concluded that the grievances were without foundation. On the evidence adduced he was entitled to arrive at this conclusion.

Then, a little later, still in the long paragraph 6:

"It was clear from the evidence that the major concern of the respondents was the applicant's failure to attend at work. We considered what if any inferences we could draw from the way the dismissal was handled which might have suggested that the true reason for the dismissal related back to the Bomford flail incident and the health and safety issues that were said to arise, we could not. In our view the dismissing officer Mr Doherty dismissed the applicant because she was unable to return to work and he did not feel that there was any good reason for her not to do so. Indeed in the letter of dismissal he made it clear that if the applicant had returned to work before her notice expired on the 19^th June the notice would be withdrawn. …"

6. That is, by no means, every paragraph and every fact that was found, but I hope that it gives a sufficient flavour of the case as the Chairman, Mr J.C. Hoult and the two Members, Mr E. Hall and Mrs M.P. Hughes found it to be after a hearing which, as I mentioned, was spread over four days and included at least nine witnesses.
7. Before we turn to the argument we ought to remind ourselves of Section 100 of the Employment Rights Act because, although there was mention made in the case, as you will have heard, of Section 44 and Section 104, Mr Grace, who appears today on behalf of Miss Jones, made it clear at the outset that Section 44 and Section 104 were withdrawn, in effect, before the end of the hearing before the Employment Tribunal and no appeal is raised in relation to those sections. It is Section 100 which is concentrated upon and, indeed, within Section 100 the only subsection relied upon by Mr Grace today (and the only subsection which we understand from him to have been actually run below) is Section 100 (1)(c). Section 100 (1) begins:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that -

(c) being an employee at a place where –

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety."

And that mention of representatives and so on is a reference back to subparagraph (b) of subsection (1), but I do not think we need to read that out.

8. A simple question arises; was there a Health and Safety representative or a Health and Safety committee? That is a subject to which we will need to return but it is to be remembered in that connection, as we have already quoted, that the Tribunal found "There was a health and safety representative appointed for the Mochdre plant" and Miss Jones was working at the Mochdre plant.
9. The Appellant has an amended Notice of Appeal which raises a number of grounds and, looking at the first page of the amended Notice of Appeal, subparagraph (ii) says:

"(ii) Whether a dismissal is, or is not for a s100 reason is not to be considered purely by looking at the 'way the dismissal was handled'. "

That is a reference back to the passage we have already quoted where the Tribunal said:

"We considered what if any inferences we could draw from the way the dismissal was handled which might have suggested that the true reason for the dismissal related back to the Bomford flail incident and the health and safety issues that were said to arise. We could not.

The Notice of Appeal further says:

"An Employment Tribunal should consider what the principal reason was for the dismissal as pleaded by the Employer, and then look at all of the facts to determine whether or not a health and safety reason was raised by an employee, and then consider whether that reason (the health and safety reason) was the principal reason for the dismissal."

10. The Tribunal in the passage that the Notice of Appeal cites was trying to see whether it could draw any relevant inference from the particular way in which the dismissal was handled. It did not say that the only thing it needed to look at was the way the dismissal was handled. It did not say that the only thing which it did in fact look at was the way the dismissal was handled and it is important to set the sentence that was relied upon in its context. It was immediately preceded by a sentence that said "It was clear from the evidence that the major concern of the respondents was the applicant's failure to attend at work" and the Tribunal was trying to see, that being their impression from the evidence, whether some contrary inference could be drawn, namely whether, notwithstanding the evidence that led them to that conclusion nonetheless, it was properly to be inferred that a health and safety issue was truly the principal reason. They said they could not draw that inference.
11. The Tribunal had, by then, set out pages of facts, many of which we have quoted, and there is no reason to think that they did not have those pages in mind when, in this passage towards the very end of the Decision, they were responsible for the sentence which Mr Grace criticises. If they had said that the only thing they needed to look at, or could look at, or should look at, was this question of a possible inference then, of course, they would have been wrong but they do not say that and we do not see any error of law in the approach which they adopted on this point.
12. Then in the Notice of Appeal the Appellant turns to a number of grounds which she urges should have led the Tribunal to inferences which could have been drawn in her favour. In subparagraph (iii) of the Notice of Appeal it says that:

"(iii) There are/were many different reasons as set out in the decision as to why the Tribunal should have found that there were indeed inferences that could have been drawn in support of the Appellant's contention that the principal reason for the dismissal was a reason relating to health and safety."

13. But the relevant question before us is not whether the Tribunal could have drawn inferences in Miss Jones's favour; it is not even whether on the evidence we would have drawn inferences in her favour. The question is rather whether the Tribunal's failure to draw inferences in her favour represented an error of law in that no Tribunal properly instructing itself on the law and having found the primary facts as it did could have concluded as it did. Only if that is shown is there a relevant error of law and yet, with respect, the various facts asserted do not begin to amount to a case that inferences in the Appellant's favour had to have been drawn and it is to be remembered that the Tribunal heard evidence from witnesses over some four days. They are the masters of findings of fact. They have the advantage of having seen and heard the witnesses. Beyond that, they are in fact the only body that has all the evidence before it. We do not even have Chairman's Notes of Evidence. We can form no view of what picture the evidence as a whole should properly have created. It is worth going back to the central findings; we quote 3. Firstly, "The applicant did not raise this matter directly either with a health and safety representative or indeed through her Union". The second quote "It was clear from the evidence that the major concern of the respondents was the applicant's failure to attend at work". And, as a third quote "In our view the dismissing officer Mr Doherty dismissed the applicant because she was unable to return to work and he did not feel that there was any good reason for her not to do so".
14. We are unable to say, in the light of those findings and in the absence of Chairman's Notes, and not having the totality of the evidence in front of us, that those conclusions represented an error of law.
15. There are some other points in the Notice of Appeal which deserve attention. It is said:

"The Respondents terminated the Appellant's contract in contravention of their own procedures."

No one is here claiming, certainly not Mr Chambers on behalf of the Conway Council, that the Council behaved in an attractive manner, but whether or not the Respondents terminated the Appellant's contract in contravention of their own procedures is a matter that simply goes as to whether she has a claim in contract. Oddly enough, she never raised a claim in contract and so the matter goes no further.

16. Next the amended Notice of Appeal says:

"The Employment Tribunal, at numbered paragraph (5) make it clear that if the Appellant had the requisite qualifying period of employment, they would have found the dismissal unfair."

We would not quarrel with that for a moment but it is completely irrelevant unless she was enabled to bring a claim for unfair dismissal which, of course, the Tribunal ruled she could not. So, again, it does not assist her.

17. Then thirdly, it is said:

"The Respondent, it is submitted, deliberately terminated the contract at the point that they did in order to deprive her of making such a complaint."

Well, until the two years service was served, Miss Jones could complain only of breach of contract. In fact, as we have mentioned, she did not do so. If the employer was in breach of contract in hurrying through the dismissal procedure then it was open to her to complain in contract. Although that is the only claim she could have brought in relation to any improper haste of that character, she did not bring it. The complaint, in other words, leads nowhere in relation to unfair dismissal, which was the only complaint she actually raised.

18. Two further points were raised by Mr Grace. The first is as to the burden of proof under Section 100 (1) (c). He says that where it is shown that the employee reasonably believed in a particular health and safety complaint and that that complaint had not been brought to the employer's attention then where there was, as here, a health and safety representative at the place of work, the burden of proof then passes to the employer to prove that it was not reasonably practicable for the employee to raise the complaint with the representative and that where the employer does not so prove then the Tribunal should, without more, infer that it was not reasonably practicable for the employee to raise the complaint by way of the representative. The Tribunal, he says, should therefore on that point have held that Section 100 (1) (c) was satisfied.
19. But, with respect, that is not what the subsection says. If there is, as here, a safety representative, the onus is on the employee seeking to rely upon Section 100 (1) (c) to make good its requirements, including that it was not reasonably practicable to bring the matter to the employer's attention by way of the representative. We have no reason to think Miss Jones satisfied that burden. It is not said that there was evidence that she did, only that she did not know that there was a health and safety representative and, indeed, even that is not brought to our attention by way of substantiated Chairman's Notes but by way of correspondence which might or might not be correct. The position therefore being that she did not prove that she could not reasonably practicably bring the matter to the employer's attention by way of the health and safety representative, she could not rely on Section 100 (1) (c) however much she might, herself, have reasonably believed in the health and safety issue which she wished to raise.
20. Therefore, although Mr Grace is right to say that the Tribunal seems to have looked more to their own view as to whether the health and safety issue was justified rather than to the more important and relevant question of whether Miss Jones reasonably believed in it, it matters nothing because in any event she failed to satisfy the conditions of Section 100 (1) (c).
21. Another point (I think, the last that Mr Grace raises) is this, that the reason which the employer gave for hurrying through the dismissal procedures was so obviously an inadequate reason as to raise a presumption that the employer had truly had a more serious intent, namely, as we have understood, to avoid Miss Jones' complaint for unfair dismissal on health and safety grounds. But there is no such presumption available to Miss Jones; there is no authority in support of such a presumption and no logical necessity for creating such a presumption. But, moreover, if there had been a good health and safety ground, the fact that the two year period had not expired would not have availed the employer. There is, in other words, nothing in that point at all.
22. Doing the best we can (and we hope we have now dealt with the various points which have been raised on the Appellant's behalf) we find no error of law in any of them and accordingly, we dismiss the appeal.