United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR A LYNCH QC Instructed by: Bevan Ashford Solicitors 1 Chancery Lane London WC2A ILE


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a full hearing the appeal of Miss T C Von Goetz in Von Goetz v St George's Healthcare NHS Trust. As we have three appeals in that main action, it would be best for me to specify that this first judgment relates to the part that we have marked A and which relates to appeal number EAT/1395/97.
2. On 26 February 1997 the Employment Tribunal received from Ms Von Goetz an IT1 for unfair dismissal and sex discrimination. She had, she said, been employed from 25 November 1994 to 30 November 1996. In terms of indicating what facts were relied upon by her in that claim, the IT1 was completely inadequate, saying:

"Full details to be provided later"

She asked for reinstatement.

3. On 18 March 1997 St George's Healthcare Trust, which we can conveniently simply call St George's, lodged an IT3 which alleged that Miss Von Goetz had been dismissed on the expiry of a fixed term contract. They said:

"1. Response to claim of unfair dismissal

Miss Von Goetz was employed in a training post by St George's Healthcare NHS Trust as a flexible Trainee Registrar. Like all training posts this was a fixed term appointment. Miss Von Goetz's original contract was for one year from 25 November 1994 to 24 November 1995. Miss Von Goetz commenced maternity leave on 19 February 1995 and on her return to work on 18 February 1996 was granted an extension to her contract to allow her to complete one year of training. This commenced on 19 February 1996 and with untaken annual leave expired on 30 November 1996.

A copy of Miss Von Goetz's contract is enclosed.

A separate request has been made for further and better particulars before a full response can be submitted."

Then, under a separate heading, there was the response to the claim of sex discrimination indicating that it was to be resisted but that Further and Better Particulars would be necessary from the Applicant.

4. On 29 May 1997, a short document headed "Outline Full Particulars" was served by Miss Von Goetz. It differs from conventional Further and Better Particulars which usually set out (in one hopes, chronological order with their respective dates) the alleged events said to have occurred and which are relied upon by the claimant as an indicator of, as it might be, unfair dismissal or sex discrimination.
5. The substantially different way in which Miss Goetz approached the particulars might be illustrated by her saying, in part of her list of contents,

"PART A General Points

Liability of employer

The length of this document; lessons to be learned from submarines"

But Particulars, some thirty eight pages, were given and there is later reference by the Employment Tribunal to full Particulars as having been given.

6. On 16 July 1997 there was a directions hearing. On 24 July 1997 the Employment Tribunal records the outcome of that directions hearing. It was that a hearing was fixed for 10 October 1997 to deal, as preliminary issues, with three point: firstly, whether a waiver in the fixed term contract, granted to Miss Von Goetz, precluded her from claiming unfair dismissal. Secondly, whether she could raise Health and Safety grounds such as would make her dismissal, if there had been a dismissal, automatically unfair, and, thirdly, whether she had two years unbroken service for unfair dismissal purposes. The Tribunal, even then, in July 1997, saw the matter as likely to be lengthy, and it proposed to set aside five days, on and from 19 January 1998, for that substantive hearing to which the parties were thought to be moving.
7. On 10 October 1997, those preliminary issues came before the Chairman alone. On 2 December 1997 the Decision was sent to the parties. It was the Decision of Mr I. S. Lamb, sitting alone, at London South, and it was:

"(i) the issue whether the Applicant is prevented from claiming that she had been unfairly dismissed by reason of the application of section 197 of the Employment Rights Act 1996 is a question of mixed fact and law and shall be determined by the Tribunal which hears the merits of the case on the 19^th January 1998"

And, pausing there, that is the waiver question to which I referred to earlier a moment ago.

"(ii) the Applicant is not entitled to complain that she was dismissed for a reason which falls within section 100 of the Employment Rights Act 1996."

and that is the Health and Safety issue. The Decision is some six pages long.

8. On 11 December 1997 Miss Von Goetz's Notice of Appeal was lodged; it was twenty pages long. She asked whether the appeal could be expedited so that the fixture in January 1998 need not be lost. On 31 December 1997 St George's put in a two page answer to her appeal.
9. Miss Von Goetz has several other appeals awaiting hearing here, but I shall not take up time describing the degree to which any one matter has delayed any other matter, or set out the reasons for the delay, or who is at fault in relation to them; it would take a long time adequately to set about all that. Suffice it to say that on 26 April of this year, directions were given as to three appeals, of which this is one, for them to be listed for the same day on not less than twenty eight days notice of hearing. There were other directions given but the Notice of Appeal in this first matter that we are dealing with - A 1395/97 - remained unamended. Miss Von Goetz in this and other appeals, including appeals to the Court of Appeal, has acted in person. The task of conducting a number of appeals and proceedings was plainly becoming truly burdensome to her. Issues as to her health and issues as to adjournment began to be raised.
10. After much correspondence, this appeal with two others, was listed for 4 July of this year. It has not been said that the required twenty eight days notice was not given for 4 July of this year. Miss Von Goetz neither attended nor was represented on that day. She had applied by letter to me only a little earlier, and had been refused an adjournment by me, as the application seemed to be put on medical grounds, and yet, as it seemed to me, was without adequate supporting medical evidence. The matter therefore went on and came before Mr Justice Douglas Brown and two members of the Employment Appeal Tribunal on 4 July.
11. In the presence of Mr Lynch, who appeared for St George's, but not in the presence of Miss Von Goetz or any representative of hers, this Tribunal then made an Order and they said this:

"1. The hearing set for the 4^th day of July be adjourned until the 18^th day of October 2001 ("the new hearing date")

2. any adjournment of the hearing on the new hearing date is subject to the directions set out at 3 below

3. (a) any applications for an adjournment of the hearing on the new hearing date shall be made to the President of the Employment Appeal Tribunal and shall be supported by a full written statement of reasons upon which the application is based, which statement is to be provided to the Court and the other party as soon as practicable and shall be made not later than 21 days before the new hearing date

(b) if any application for an adjournment is made by Miss Von Goetz on the basis of her medical condition that application shall be supported by a full medical report which sets out the nature of the medical condition, the reason why that condition prevents Miss Von Goetz attending on the new hearing date and, so far as practicable, the likely duration of the condition and/or likelihood of recurrence of same

(c) the Respondent is at liberty to apply within 7 days of receipt of the said medical report for the author of the medical report to attend the Employment Appeal Tribunal to be cross-examined upon the contents of that report

(d) any application for an adjournment based on any medical condition is subject to confidentiality between the parties, their legal advisers and the Tribunal.

4. If an adjournment is refused, and the Appellant does not attend on the new hearing date the Employment Appeal Tribunal may proceed to decide the Appeals on the basis of any written representation.

THE TRIBUNAL DIRECTS that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the date the Judgment is sent to the parties".

We have not been told of any application to the Court of Appeal succeeding.

12. The judgment given on that day included these observations: Mr Justice Douglas Brown said, at paragraph 7:

7 So we have come, we have to say reluctantly, to the conclusion that these appeals should be adjourned. We have to say that we are sceptical of the reasons put forward by the general practitioner who does not in her letter identify any condition or illness which gives rise to the symptoms she describes.

"She" there being a reference to Dr Withey writing in respect of her patient, Miss Von Goetz the EAT continued, as to those reasons:-

"They are, if we may say so with respect to the doctor, on the vague side and that is not just the letters that we have read out but other letters which we have read, some of them going back to April, where the doctor was providing similar extremely vague information. One area where the letters are less than helpful, is having said that there should be a period of three or four weeks' rest or a month's rest, there is no explanation provided as to why, after the expiration of that time, the condition still prevails. Be that as it may where there is a hospital appointment"

and that was what was said to be happening to Miss Von Goetz on the 4 July,

"the details of which have now been given to us, the decision to adjourn now has been made. So we will adjourn. We will now hear from Mr Lynch as to the way forward with these appeals."

Miss Von Goetz has made subsequent requests for adjournment, leading to a letter from my clerk to Miss Von Goetz, on 12 October where he wrote this:

"I refer to your letter dated 5 October which has been seen by the President, together with your files in respect of your appeals at this Tribunal. He has asked me to write as follows.

In the light of Douglas Brown J's Order of 4 July 2001, the President is unable to grant an adjournment of the 18 October 2001 hearing on the material so far presented, and so the hearing on 18 October 2001 will proceed as listed.

If you are able to present adequate medical evidence on or before 18 October 2001 it will be considered but paragraphs 3 (b) and (c) of the Order of 4 July 2001 need to be borne in mind. A draft report is not good enough. Moreover, the draft report referred to in your letter of 5 October 2001 has still not been received.

If you are unable to be present on 18 October 2001 and have not been able to arrange professional representation, the EAT is likely to view sympathetically any application by a friend or relation to speak on your behalf.

Finally, the President asks you to note paragraph 4 of the Order of 4 July 2001: the case may go ahead even if you are absent."

13. Well, despite the Employment Appeal Tribunal receiving yet further applications in writing from Miss Von Goetz for adjournments, the position was that no medical report was received until 16 October, this being now 18 October. Mr Lynch has taken us very carefully through a bundle, usefully composed by his instructing solicitors, of all the papers most relevant to consideration of the question of whether there should be an adjournment; it is some ninety five pages long. Also we have seen a further fifty or so added pages, even running down to ones called into existence, it would seem, at 1.15 am this morning. Simply going through the literature in his adjournment bundle took Mr Lynch, together with explanations of what was going on throughout the correspondence some ninety minutes. We will not encumber this judgment with a detailed analysis of Mr Lynch's submissions in relation to the bundle which he so usefully produced but we will look at what one might call the immediate foreground, namely the medical report that was received on 16 October.
14. Before we get to that it is quite plain that Miss Von Goetz is physically well enough to travel. Certainly she was able to travel to and from Scotland quite recently, in September.
15. The medical report purports to be dated 4 October but it had written on it "4^th October" as part of the typescript and then the words "collect on 11/10/01" and then there is reference to the name of a receptionist. It is the report of Dr Josephine Withey. The medical evidence as a ground for adjournment should have been supplied twenty one days before 18 October. It was submitted to the Employment Appeal Tribunal late in the afternoon of 16 October. Quite when St George's got a copy I am not entirely sure but no doubt at much the same time.
16. The liberty given to St George's to apply for cross-examination, within seven days of receipt of a report, of the doctor concerned, has thus been rendered meaningless. The medical report speaks of 22 March of this year, 27 April, 29 May and June of this year. It is not in terms said that there has been any more recent examination of Miss Von Goetz than June of this year, although other correspondence suggests that that is probably the case; I simply make the point that the report itself does not mention it.
17. It is said that there are two medical problems: the first is "paraesthesiae and altered sensation in both arms" but that would not, on the face of things, seem to have any effect on her ability to attend today or to address oral argument to us. The second is said to be stress and exhaustion. The doctor seems not to rely on her own observation, certainly not only upon her own observation, but on the observations of a Community Psychiatric Nurse, Mrs Heather Field, who examined Miss Von Goetz or, at any rate, reported on her in June of this year. Dr Withey does not in terms say whether she endorses the nurse's view or not. Dr Withey says:

"The increasing levels of stress which Miss Von Goetz is exposed to has left her with difficulties in concentration, poor memory and poor sleep. She is now unable to continue preparing documents for court hearings etc. I feel she has reached the stage where it would be detrimental for her to continue and have advised her to take time off. It is difficult to predict how long it will take her to recover from the current stress which she is under. I feel a period of some weeks to months is necessary, probably at least 3 months."

There is no attempt there to deal with the possibility, perhaps even the probability, that stress is related to the proximity of a hearing and that it is likely to recur whenever a hearing is imminent. In other words, were we to adjourn, it may be likely to arise again. The likelihood of recurrence was expressly referred to in Mr Justice Douglas Brown's Order and it is not dealt with at all. Moreover, what it is that would be detrimental to continue, to judge from that quotation, would seem to be the preparation of documents. But what is now needed is not the preparation of yet more documents but attendance here to give us oral assistance by way of submission in whatever manner Miss Von Goetz would have wished.

18. There is, significantly in our view, no adequate explanation of why a report dated 4 October and said to have been collected as late as a week later, was, even so, not sent to us until 16 October, nor why the report could not have been obtained shortly after Mr Justice Douglas Brown's Order of July this year. Given the non-compliance with the terms of Mr Justice Douglas Brown's Order, we could only fairly adjourn today, which is a hearing, of course, which St George's have attended ready to go ahead on all points, on the basis of expecting St George's to make an application for Miss Von Goetz to pay all the costs thrown away by the adjournment.
19. Significantly too, there is no medical explanation of how or why Miss Von Goetz, so stressed by the production of documents, continues to churn out page after page after page. Typically, the one and a quarter pages of the doctor's report is accompanied by over eighteen pages of close typing from Miss Von Goetz. It could even be that Miss Von Goetz would be likely to be more stressed by a not improbable Order for costs in favour of St George's than she would be upon seeing whatever reasoned judgments emerge from today's hearing. If we are wrong in law in the judgments that we will go on to deliver, then of course, she will be at liberty to seek leave to appeal to the Court of Appeal.
20. Given the long history of this matter, which Mr Lynch has carefully explained to us, the proper course, in our view, because we have to bear in mind that we need to be just, as far as possible, to both parties and not merely to one, is to proceed with the case today. We indicated this earlier on the conclusion of Mr Lynch's address on the question of adjournment, and accordingly, we have moved on to hear the substance of the appeals.
21. Coming, then, to the substance of this first appeal, A, with that procedural background, we turn to the Employment Tribunal's Extended Reasons of 2 December 1997 and Section 100 of the Employment Rights Act 1996:-

"Health and safety cases

(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 -

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee

(i) in accordance with arrangements established under or by virtue of any enactment, or
(ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

[(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in the election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),]

(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,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (l)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3). Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them."

22. The case put below by St George's was summarised by the Tribunal as follows:

"17. The case put forward by Mr Lynch can be simply stated: section 100 of the Employment Rights Act 1996 is concerned with dismissal for reasons connected with health and safety only where the risk concerned is to employees, including the Applicant, and the protection afforded does not extend to risk of health and safety which falls upon some third party, such as a member of the public, other than an employee.

18. Mr Lynch argued that section 100 was enacted to comply with European Directive 89/391/EEC. The statutory provision must therefore be construed by reference to the provisions and purposes of the Directive. The terms of the Directive are expressly limited to workers. Problems related to patient care are provided for by other means and procedures, and there is no need to distort the application of either the directive or the statute to extend their cover in the way argued by the Applicant."

23. Miss Von Goetz's argument is set out in paragraphs 20 and the beginning of 21 at page 31 of our bundle and it said:

"20. Miss Von Goetz argued that the terms of section 100 are not in any way limited as argued by Mr Lynch. There is nowhere an express solution which states that risk to health and safety at work are limited to employees or even workers. The phraseology used is entirely open-ended in its effect. It was open to parliament to use words which would make it clear that the provisions were limited to risk to employees. In section 100(1)(e) it is provided:

"(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

That could have been a reference to other workers or other employees but it was not so phrased.

21. Miss Von Goetz therefore argued that what had happened here quite simply was that the British Government had decided to give greater protection than that which was the minimum required by the European Directive. In doing so it was acting in accordance with domestic health and safety legislation."

The Employment Tribunal held, in paragraphs 24 and 25 as follows:

"24. Although I find the arguments put forward by Miss Von Goetz attractive, I am, on balance, persuaded by Mr Lynch that section 100 should be interpreted in the light of the Directive, and the Directive makes it clear that the ambit is indeed limited as he contends. The case law in the European Court of Justice indicates that the British Government has had a track record of failure to implement Directives fully, rather than going too far, and in the absence of evidence to the contrary, I do not believe that parliament intended to offer greater protection than was necessary.

25. It follows that I accept Miss Von Goetz is not entitled to complain, as a matter of law, of her dismissal falling within section 100."

24. St George's case today is much as it was below. Mr Lynch QC, has argued six propositions. Firstly that section 100 was enacted to give effect to the Directive, to which we have already referred, concerned with the health and safety of workers; it is clearly concerned with the health and safety of workers. Secondly, that therefore the Directive is not concerned with health and safety of third parties except where they are expressly referred to. Thirdly, that United Kingdom legislation, enacted to give effect to a Directive, must be interpreted consistently with the Directive and with its purpose. Fourthly, as a result, section 100 is, as is the Directive, to be understood to be concerned with protecting the health and safety of workers, save to such extent, if any, going beyond that, as is expressly referred to. Fifthly, in any event, that is the only proper construction of section 100, simply as a matter of ordinary domestic construction of an ordinary domestic provision, and sixthly and last, even if section 100 was wider than the Directive, Miss Von Goetz's concerns fall outside the range that could be within section 100.
25. We need therefore to return to section 100. It is to be noted that in section 100(1)(c) that whereas, in 1(a) and 1(b) health and safety is mentioned and, where it is mentioned, the words "at work" are added, in (c) they are not. The conclusion of (c) is concerned with the position where an employee, in certain cases, brings 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,

There is no added provision:

"harmful to health or safety at work".

In 1(e) there is this provision:

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

The underlining, of course, is our underlining. There is no reference there to the other persons being required to be workers or fellow-workers, or to be workers at the same establishment, or of the same undertaking or part of an undertaking. It is just a reference to "other persons" which, on the face of things, means exactly what it says.

26. Can we take two examples? I hope they are not too lurid. Suppose a man works as a machinist in a parachute factory. There is no safety committee; no one has been appointed as a safety representative. He notices that, by some mistake, the yarn used to sew up the different sections of the parachutes is not the usual yarn and not up to the strength of the usual yarn, nor having its usual durability. He says that the parachutes will, in consequence, burst open if they are used. If he tells the employer about that, could he not fairly think himself protected by section 100 were he then to be dismissed? Would he not be within the last lines of section 100(1)(c)? Plainly, his mention would be arising as a circumstance connected with his work, and yet the pilots or other persons likely to be affected if the parachutes were to burst might not well be employees. They are likely to include service personnel, or private fliers, or daredevils parachuting for fun, and they certainly would not be likely to be fellow-employees.
27. Take a different example that possibly might fall within 1(1)(e). On a wet and icy day, a bus inspector sees a bus about to leave the depot, on a passenger route, with bald tyres. The inspector tells the driver not to take it out, fearing for the safety of the driver, the conductor, the passengers on the bus when they get on, pedestrians and other road users. He is fired. Would it really be an answer that the other persons he sought to protect from danger were not, or were not necessarily employees, or were not fellow employees, and were not at the inspector's place of work?
28. We see no reason, simply in point of construction of a domestic provision, to limit the ambit of, for example, 1(c) and 1(e), so that they should be concerned only with harm or possibilities of harm at the dismissed employee's place of work or to his fellow employees, or to any employees. Indeed, nowadays, it is not all uncommon for one worker to stand alongside his fellow, not even knowing whether the fellow worker is, truly speaking, an employee at all, rather than someone on a contract for services, engaged by way of an employment agency.
29. As for the argument that the Directive is limited to "workers" and that section 100 was intended to implement it, even if both parts of that submission were true (and we do not say for a moment that they are false) that does not militate against giving the full width of the ordinary meaning to section 100. Mr Lynch has taken us in great detail through the provisions of the Directives and Council Resolutions and Articles to show the multitudinous references to "employees", sometimes to "workers", but it seems to us that that is nothing to the point.
30. It is, of course, a formidable argument, when it is encountered, that a domestic provision does not go as far as the Directive requires it to have been done, but there is, in our view, no force whatsoever in an argument, where the language of the domestic provision is clear and unambiguous, that the domestic provision goes further in terms of protection than the Directive requires. The reasoning of the Employment Tribunal below in its paragraph 24 in our view cannot be supported. But that is far from saying that Miss Von Goetz and her case falls within section 100.
31. It is, as it seems to us, extremely unlikely that her case, as so far raised, does fall within section 100 but unfortunately the Employment Tribunal never seems to have considered whether it did. They never looked, so far as one can see from the Decision (the Chairman alone), at precisely what Miss Von Goetz's complaints were nor looked at them to examine whether they could or did fall within section 100. One can only truly determine that by going through the particular factual requirements of section 100 and looking at them in the light of whatever the allegations were. For example, each sub section of section 100(1) has rather different requirements, and one has to look to find the presence or absence of the facts necessary to make the subsection applicable. Thus, for example, one might have to ask whether Miss Von Goetz performed, or had proposed to perform any functions as a health and safety representative or as a health and safety committee member, and so fell within 100(1) (a) and (b), and so on, going through the various subsections of the Act. A crucial part of the case was therefore left unconsidered by the Tribunal.
32. The combination of unsupportable reasoning coupled with the failure to assess precisely what the allegations were and whether they fitted within section 100 seems to us to amount to a serious material error of law. Indeed, Mr Lynch quite candidly accepts that it might do so, and it is a fair comment of his that it is hard for him to remember precisely what was done as long ago as the hearing on 10 October 1997. He cannot be sure whether at the hearing as Counsel he ever needed to go, or did go, beyond the issue of the construction of the Act; in other words it is at least possible that the point that he makes in his sixth proposition is not open to him as it was not raised below in any case.
33. So, provisionally- we must emphasis that word at this stage - we see a case for allowing the appeal, one such as to lead to us remitting this appeal to the Employment Tribunal, for them to reconsider the health and safety ground as a ground that could be material to the case. But whether that turns out to be an appropriate thing to do will very much depend on our views on other parts of the case that are before us today, in a manner which we shall later explain. So for the moment, looking only at Appeal A, we see a provisional case for a remission, but we do not make that a full Order until we have moved on to other parts of the case. That is all, as we say for the moment, on the first appeal developed before us, Appeal A.