United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Olu Ojedokun Representative E Legal Solutions Ltd Crown House 18 Gipsy Hill London SE19 1NL
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


HIS HONOUR JUDGE J McMULLEN QC

1. This is an application against the decision of the Registrar, made pursuant to Rule 3(7) of the Tribunal Rules, indicating that in her opinion the appeal to the EAT did not identify an error of law and thus qualify under section 21 of the Employment Tribunals Act 1996 which gives the EAT jurisdiction only on questions of law.
2. Following the Registrar's letter to the Applicant in the proceedings, an application has been made under Rule 3(10) and I have today conducted a hearing rather than simply looking at the matter on the papers. In doing so, I have had the benefit of oral arguments presented by Mr Ojedokun and a Skeleton Argument in support of the grounds.
3. Reserved Extended Reasons in this case were given by an Employment Tribunal at London South, Chairman Ms Wade, promulgated on 9 October 2002. They followed quite substantial Summary Reasons, promulgated on 11 June 2002, after a hearing which took place on 25 March 2002.
4. The Applicant's claim was that she had been dismissed, contrary to section 100 of the Employment Rights Act 1996. The Tribunal's first task, therefore, was to conduct a hearing and decide whether or not there had been a dismissal. Mr Ojedokun represented the Applicant, and the Respondent was represented by Counsel.
5. The Tribunal found that there was no dismissal, and thus there was no breach by the Respondent of section 100, which is an automatically unfair dismissal in circumstances giving rise to concern about health and safety.
6. The Tribunal analysed the three possible fundamental breaches which identified in a description of the issues and dismissed each of them. They were breaches of the implied term to provide a safe system of work; a term related to the Applicant's working hours and the implied term of mutual trust and confidence.
7. The arguments addressed on appeal fall into the following categories: first, the approach to section 100 and section 95(1)(c). It emerged in debate with Mr Ojedokun that we agree that section 100 is regulated by section 95(1)(c) since a dismissal must be proved for the purposes of section 100, and dismissal for the purposes of part 10 of the Employment Rights Act is defined by section 95(1)(c). Thus, sections 95 and 100 are both in the same part of the Act. The Tribunal was correct to define the issue in familiar terms relating to constructive dismissal. There could not be a breach of section 100 without there being a dismissal falling within section 95 and here 95(1)(c) was relied upon. Thus there cannot be a legal argument based upon, as Mr Ojedokun puts it, a ground under section 100 standing on its own and not being subject to section 95. I reject that as being wholly unarguable.
8. Secondly, it is contended that the Tribunal failed to deal with what was filed as a separate ground under the Directive 89/391 EC. That is the framework Directive, setting out the basis upon which domestic regulations would be implemented. Again, in helpful debate with Mr Ojedokun, he accepts that the Directive is sent to the member states and is not directly enforceable at the suit of the Applicant against her particular employer in the private sector. Nor is it suggested that the Directive sheds light on the construction to be adopted of the domestic regulations. In any event, it would have to be parasitic upon a domestic right justiciable before the Employment Tribunal and cannot stand on its own: See Biggs [1996] ICR 364 and Barber [1996] ICR 379; thus no error was committed by the Employment Tribunal, giving jurisdiction for us to hear an appeal on this point.
9. Thirdly, it is contended that the Tribunal erred when it found that the obligation in the Health and Safety (Display Screen Equipment) Regulations 1992 regulation 2, is not to an individual health and safety assessment in respect of each particular applicant, unless and until particular problems arise. There is force in Mr Ojedokun's argument that that is a misconstruction of regulation 2, which says

"Every employer shall perform a suitable and sufficient analysis of those work stations-

(a) (regardless of who provided) them are used for the purposes of assessing the health and safety risks to which those persons are exposed in consequence of that use."

That on its own indicates an arguable error of law in my judgment.

10. But the real issue in this case is to determine what happened on 28 August, when the Applicant resigned, and we know that in June, an assessment was undertaken by the Respondent. The Tribunal analysed this particular allegation as falling below the breach of the implied term to provide a safe system of work, for Mrs Byrne carried out the risk assessment in June 2000, more than two months before the Applicant resigned. I do not regard that as being an error of law which is relevant to the principal issue of the case, that is of constructive dismissal and without that connection, no point of law arises.
11. Fourthly, it was contended that the Summary Reasons differ from the Extended Reasons in the characterisation of the statute. Section 100 involves an analysis of whether the employee reasonably believes that she was in imminent danger and so on, rather than whether there was in fact such imminent danger. Again, on its own the Summary Reasons of the Tribunal betrays an error because it focused upon the fact rather than the belief. However, as Mr Ojedokun puts it, that error was not replicated in the Extended Reasons. The Decision of the Tribunal is the basis upon which the appeal has to be founded. The Tribunal has altered its reasoning in a number of respects, but, of course, this is to be expected where there is a jurisdiction to give both Summary and Extended Reasons; by definition, Extended Reasons will be longer, they are the Reasons which are the subject of scrutiny on appeal to decide whether the Decision and the Order made by the Tribunal were correct in law and so it is to those Reasons that we turn. Since the Tribunal does not there indicate the same error as it did in its Summary Reasons, no error of law appears in the reasoning which will be before the EAT.
12. The Applicant has not shown that the EAT has jurisdiction to hear her case and I accept the decision of the Registrar that this matter should be taken no further, and, exercising my own judgment, I make the same decision and dismiss the appeal, with my thanks to Mr Ojedokun for his careful arguments today.