United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW GEORGE (Of Counsel) The Bar Pro Bono Unit


 


JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at London Central on 12 March 2002. It comes before us by way of preliminary hearing to determine if there is a point or points of law that can properly be argued in full before the Employment Appeal Tribunal. We are considerably indebted to Mr George who has appeared on appeal without fee to advance all the arguments than can properly be advanced in relation to this case. Before the Employment Tribunal the Applicant appeared in person and we have found some difficulty in visiting upon the proceedings before the Tribunal many of the arguments as to fact issues and contentions that have been advanced before us.
2. However, for reasons which will follow we have determined to permit this matter to proceed on one ground. The Employment Rights Act in Section 48 provides that an employee may present a complaint to an employment tribunal that he has been subjected to a detriment by any act by his employer done on the ground that a worker has made a protected disclosure. Without going into detail, the process of reasoning and adopted by the Employment Tribunal understandable from the framing of that section was arguably to identify the detriment and examine the ground upon which it was done. The detriment in this case was the removal from site of the Applicant, although there may have been a question as to whether that was capable of being a detriment in any event in the context of the nature of the Applicant's employment. He was a security guard allocated to different sites of the Respondents, the relevant one being the American Express site at the time. Perhaps the detriment is that when someone is taken from one site there may be a degree of uncertainty and delay before he can be found work at another site.
3. The process of reasoning for which Mr George contends, however, is that instead of arguing from the end backwards, a Tribunal should argue from the beginning forwards and ask itself whether there was a protected disclosure which may have been the whole or part of the ground upon which the detriment was imposed. In the end it seems to us that that point is just arguable in the context of this case. The Applicant, on 18 June believed that American Express wanted him to be taken from the site. On 21 June he questioned his employer's authority to instruct him to enter a series of rooms to carry out temperature checks. It is arguable, it seems to us, although the facts were found by the Tribunal, that that questioning should have been identified as a protected disclosure by them.
4. It also appears that on 21 June the Applicant refused to carry out the work. It appears that subsequently American Express were informed of that and required the Applicant to be removed from their site or not to return there which the Respondents complied with. As we understand the argument it is that if a Tribunal looks at the detriment and identifies what it believes to be the ground without looking at any protected disclosure and considering whether that was capable of having been part and parcel of that ground, there is a danger that a Tribunal in identifying one aspect or a large part of the ground upon which an employer imposes a detriment may not be alive to the fact that there may be other factors deriving from the protected disclosure. It seems to us that the appeal hinges upon the finding in paragraph 12 of the Tribunal that by the time American Express had been informed that the Applicant had refused to carry out the instruction by 22 June, American Express had been informed that the Applicant had refused to carry out the instruction and required that the Applicant should not return to their site.
5. Mr George argues that had the Tribunal identified the protected disclosure which he alleges existed in this case, they may have gone on to consider whether that was part and parcel in the event of the ultimate imposing of the detriment, being the removal from site. In the Notice of Appeal the grounds of appeal are divided into paragraphs many of which, strictly speaking, contained not really grounds so much as argument and they focused in the end on paragraph 7.9 which is that on the findings of fact of the Employment Tribunal the Appellant was subjected to a detriment on the ground that he had made a protected disclosure (ie the Respondent told American Express about the protected disclosure that had been made and, as a result, the Appellant was submitted to the detriment of being removed from the site).
6. As framed it seems to us that that ground is in fact unsustainable. It requires inferences from the facts and assumptions about evidence of which there is no indication on the papers before us. If it were re-framed to be that the Employment Tribunal should have asked themselves whether the detriment to which he was subjected was wholly or partly on the ground of a protected disclosure, or the facts which amounted to a protected disclosure then expressed in that way we consider that there is an arguable case that merits consideration by the Employment Appeal Tribunal, subject to any argument. Otherwise it seems to us that the remaining reasons really are supporting arguments for that essential ground. It is framed in different ways but this is not as is alleged in paragraph 7.13 that the Appellant cannot tell why he lost the case. That is a principle reserved for those cases, happily very very rare indeed, when there is a cavalier or cursory examination of the issues by an Employment Tribunal. This is not one of those cases nor is it arguable that the Tribunal's decision was perverse in the absence of a positive factual basis on which to contradict the findings of the Tribunal.
7. Other claims are also set out in the Notice of Appeal. First of all, it is contended that the Employment Tribunal did not deal satisfactorily with the unauthorised deduction from pay and that the Appellant cannot tell why he lost those claims but the case before the Employment Tribunal was essentially that the Applicant had been suspended without pay. There may be interesting arguments to be had on the construction of the employment contract and whether there should have been an entitlement to pay by reason of the fact that the Applicant was taken off the site. But looking at the realities of what was before the Tribunal we are satisfied that that did not figure. The Tribunal found that the Applicant had not been suspended. When they came to deal with this in their decision in paragraph 19 they say that the Applicant did not then attend at work because he chose to not apply for another posting and that followed the disciplinary procedures that had been implemented. They said that that was a choice for him but he was not removed from the employers' books but they interpreted the contract as providing that while he did not attend for work he was not entitled to be paid. He did not on the face of the Tribunal's findings hold himself out as available for work and it seems to us therefore that the argument put forward in the Notice of Appeal on that ground cannot be sustained as a matter of law in a full argument and it is dismissed at this stage.
8. It is also alleged that the Tribunal failed to take into account in relation to health and safety issues, the provision of cover for injury whilst carrying out temperature checks which would have followed in the daily occurrence record and which was the thing that the Applicant was arguing. However, is clear from the decision of the Tribunal that the health and safety issue as presented to the Employment Tribunal related to protective clothing and as we understand the proceedings before the Tribunal there is no error in relation to those to be argued for as arising on that point. The same goes for the significance of warning notices and that ground of appeal is also dismissed.
9. It is also suggested that the Employment Tribunal should have considered the construction of the Appellant's contract of employment to provide that any reduction in the normal hours of work for which pay was made would only be permissible under the contract if the reduction was caused by the shift pattern of the site on which the Applicant was working. Again it seems to us that this is not an argument that was presented before the Employment Tribunal and there was no onus upon the Tribunal to seek to find that argument and investigate it. Indeed it seems they would have been open to accusations of being partisan had they done so. That ground therefore is also dismissed.
10. In relation to the lawful deductions from wages or breach of contract in failing to pay wages, it is argued that the conduct of the Respondents was a breach of the term of trust and confidence which arguably prevented their relying on the clause that the Applicant was not entitled to pay. That again does not appear to us to have been a matter that was remotely part of the issues before the Employment Tribunal and we dismiss the appeal from their decision on that ground.
11. It is contended that there was not a fair hearing in that the Employment Tribunal failed to require disclosure of relevant documents from the daily occurrence record, namely three sheets preceding 22 June 2001, and in that the Appellant was not provided with a trial bundle until after the hearing had commenced when certain relevant documents were missing. However, the Tribunal must do its best to regulate proceedings as they go along and the absence of the disclosed documents in any Tribunal or anywhere else is a sad feature that happens from time to time. However it would be imposing an enormous burden, it seems to us, on an Employment Tribunal require them to identify, without submissions having been made to them, defects in procedure for them then to have to rule them, and to fail to be conducting a fair hearing if they did not do so. Whilst we acknowledge that were an Applicant appears in person, the Tribunal will always do its best to try to assist him or her to present their case in the best possible way, we find nothing on the material before us as to the way this hearing proceeded to suggest this was not a fair hearing. That ground of appeal is also dismissed.

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12. On the basis that Mr George will assist by filing an amended Ground of Appeal containing what seems to us the essential issue of his submissions to which we have referred this matter can go forward for hearing on that basis. Amended grounds must be filed within 14 days with liberty to the Respondents to object to the amendment within 14 days following which time the proposed amendments will be placed before His Honour Judge Altman or another Judge of the Employment Appeal Tribunal. It will be listed for one day in Category C and the automatic directions will apply.