United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL DRAYCOTT A Barrister Instructed by: Messrs Whittles Pearl Assurance House 23 Princess Square Albert Square Manchester M2 4ER


 


JUDGE J ALTMAN

1. This is an appeal from a decision of the Employment Tribunal held at Liverpool on 10 May 2002 that comes before us by way of Preliminary Hearing to determine if there are arguable matters capable of argument in full before the Employment Appeal Tribunal. We have before us a Notice of Appeal which Mr Draycott has very helpfully enlarged upon and to some extent diverted from in argument before us.
2. This was a claim in relation to a detriment as a result of a protected disclosure which essentially follows the complaint of the Applicant that, having reported a fellow employee for thief of diesel, he was shunned and "sent to Coventry" by his fellow employees and the employers did insufficient to protect his position. We are minded to permit this matter to proceed but we do so in the form of this short judgment because it will require the amendment of the Notice of Appeal.
3. We deal firstly with the matters that we permit to go to appeal. In paragraph 7(o) of the decision of the Employment Tribunal they set out a summary of the meeting of 22 May 2001 and it seems to us there is an arguable point of law as Mr Draycott has suggested that the Employment Tribunal failed to address the true factual import of that meeting as set out in the records of it, so that the seriousness of the complaints being made was not sufficiently considered by the Tribunal.
4. Secondly, as to paragraph 12 it seems to us arguable that the Employment Tribunal erred in stating that it was not the Applicant's case that the general treatment by colleagues was not contended to have been a detriment for which the Respondents were responsible. It is arguable that it is not clear as to the part played by the general treatment by colleagues in the assessment of that when judged, first of all by paragraph 3 of the summary reasons of the Tribunal, and secondly the originating application.
5. Thirdly it is arguable, it seems to us, that in paragraph 20 the Employment Tribunal asked itself the wrong question and/or reached a decision that was not justifiable on the facts as found by them in relation to Mr Harvey's motivation. Also there is the argument as to whether the Employment Tribunal asked itself the right question in confining themselves to the word "motivation" bearing in mind the approach suggested in Burton and Rhule v De Vere Hotels [1996] IRLR 596. On those matters which are essentially incorporated in one way or another in the original notice of appeal this matter can go to a full hearing.
6. However, there are other substantial matters in particular raised at paragraph (d) of the grounds of appeal which complain of a failure to make findings of primary fact concerning a number of evidential issues and a failure to draw proper inferences or conclusions from those findings based upon the decision in Anya v University of Oxford and Another [2001] IRLR 377 and the case is quoted therein. It is important to remember that Anya was about drawing inferences in race relations cases with all the background that that has. In this case the Employment Tribunal, although summarising the facts to a large extent, clearly addressed the evidence before them and drew conclusions from them. On the face of it we do not find an arguable case that they failed to make findings of primary fact.
7. The case of Qureshi v Victoria University of Manchester [2001] IRLR 863 that is quoted at length in the decision in Anya refers to the judgment of Mummery J as he then was. In that judgment Mummery J points out that it is not necessary to deal with every single issue of fact that is raised and cautions against the risk of imposing effectively an oppressive regime upon Employment Tribunals in requiring them to have to address every single issue. It seems to us that the decision in this case falls on the right side of the Anya principles and so we dismiss that ground of appeal of this case at this stage. This matter will be listed for one day in Category C. Automatic directions will apply and we direct that any amended grounds of appeal be filed and served within 14 days and that there be leave to amend the appeal accordingly subject to liberty to the Respondents to apply by way of objection within 14 days thereafter.