United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


MR JUSTICE DOUGLAS BROWN

1. The Appellant in this matter is Mr S J Myers and the Respondents Carrs Paints Ltd. Mr Myers appeals a Decision of the Employment Tribunal at Birmingham, the Chairman being Mr A J McCarry, and the Extended Reasons were sent to the parties on 20 November 2000.
2. The Decision of the Tribunal was that the Tribunal had no jurisdiction to hear Mr Myers' application for unfair dismissal. The circumstances leading to Mr Myers' application were, on his account, and there is nothing before this Appeal Tribunal that would cast doubt upon it, that he had had considerable difficulty in his employment with the working practices of his employers and some of his colleagues, with regard to safety over chemicals.
3. Mr Myers is very experienced in the field of paint and its constituent parts, and there is no doubt that he felt extremely strongly about some of the malpractices, in relation to safety, of his colleagues. He was also, he says, racially abused by a senior member of the staff who was dismissive of his complaints, and generally, his attempts to put right these dangerous practices fell on deaf ears.
4. He suspects that as the company was soon to be sold, he was an inconvenience and potential embarrassment to the company who did not want the manufacturing short cuts that he was exposing brought to the attention of any buyer.
5. The result was that ten weeks before the second anniversary of his employment with Carrs Paints, he was dismissed and, accordingly, and this is the difficulty that has faced Mr Myers from the outset, he did not qualify under the regulations then obtaining, to bring proceedings for unfair dismissal because he had not served the then statutory minimum of two years.
6. He brought his application as long ago as September 1996, and it was acknowledged at the outset that he had not got two years' service, but his solicitors referred to a case now known as R v Secretary of State for Employment ex parte Seymour-Smith. In that case the qualification period was being challenged, and accordingly, his solicitors persuaded the Tribunal to postpone any adjudication until that case, and any decision in it, had been clarified.
7. The matter went to the European Court of Justice and was also considered in the House of Lords. The House of Lords Decision in as R v Secretary of State for Employment ex parte Seymour-Smith 2 is now reported in the Industrial Cases Reports 2000, page 244.
8. When the result of that Decision became known, the Tribunal wrote to Mr Myers, in effect giving him notice to show cause why his claim should not be struck out, because he did not meet the statutory minimum requirements of service. He replied that he had a solicitor. Apparently a reply emanated from himself and he replied with a factual statement of his case, setting out the details of his complaints against his employers and fellow workers, but did not address himself to the legal question involved.
9. However, he wrote again saying he had been told by a Director of the Respondent Company, who had in fact dismissed him, but he could not give him the usual six months warning period because he would then gain entitlement to take his case to a Tribunal.
10. The matter was listed before the Employment Tribunal on 22 September for a preliminary hearing as to whether the Tribunal had jurisdiction in the view of the Applicant's service. Mr Myers represented himself, the Respondents had a solicitor, and as appears from the Reasons of the Tribunal, Mr Myers accepted that in the light of the Seymour-Smith Decision, he had no case for unfair dismissal, but sought to rely on a breach of contract in relation to an allegation that the Respondents were not following their own disciplinary rules in dismissing him.
11. The Tribunal decided that he had, and this was plainly right on the face of the application, not made any claim of breach of contract, but told him that they would consider an application to amend his originating application to allege that. That was discussed and, after hearing argument from both Mr Myers and the Respondents' solicitors, the Tribunal found this, in paragraph 8 of the Extended Reasons:

"……the applicant's claim had little prospect of success in any event, partly because of the fact that he could show no link between the disciplinary rules he sought to rely upon and the dismissal, and because he had received more than was due from the respondents by way of payment in lieu of notice, the usual measure of damage in a breach of contract case. Taking into account all other relevant factors and the guidance in Selkent Bus Co Ltd v Moore [1996] IRLR 661, and bearing in mind that the originating application had been filed at a time when the applicant was receiving legal advice, the delay and the passage of time and the lack of prospect of success, the application to amend was refused and the originating application dismissed for lack of jurisdiction."

12. Before us, Mr Myers has repeated his sincerely held views that the activities of his former employers were criminal, that he was not making his application for gain, but wanted their activities to be exposed.
13. He repeated that they were treating chemicals in a dangerous way, he had himself when he sought to complain about this, been threatened with physical violence, and one consequence of his dismissal is that he was not given a reference, and has not been able to resume employment in the paint sphere, although he has other lesser paid employment.
14. There was no investigation of the facts but there is nothing in the documentation to contradict what Mr Myers says, and we have sympathy with his standpoint. On his account, he has behaved throughout as a thoroughly responsible citizen. However, his opportunity to raise his grievances in the Employment Tribunal are barred by the two-year provision, as it then was, and at the hearing below he accepted that, and his alternative route of breach of contract is one that cannot succeed for the reasons given by the Tribunal.
15. Mr Myers can only succeed on an appeal to this Appeal Tribunal if he can show that there was an error of law on the part of the Tribunal below. We can identify no error of law, and accordingly, distressing though this must be for Mr Myers, we can see no arguable point to go further to a full hearing of this Appeal Tribunal, and this appeal is dismissed.