United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADAM OHRINGER (Representative) Free Representation Unit 6th Floor 289 - 293 High Holhorn London WC1V 7HZ
For the Respondent	MR MATTHEW SHERIDAN (of Counsel) Instructed by: Messrs Paris Smith & Randall Solicitors 1 London Road Southampton Hampshire SO15 2AE

SUMMARY

Unfair Dismissal

Alleged deficiency in reasoning as to the principal reason for the dismissal, the Employment Tribunal having listed six "ingredients" of the decision and then found that poor performance was the principal reason.


 


HER HONOUR JUDGE WAKEFIELD

1. This is an appeal by Miss Carla Marie Breslin against a decision of an employment tribunal, sitting at Southampton, that her complaint of automatically unfair dismissal under Section 100 (1) (c) of the Employment Rights Act 1996 had not been substantiated.
2. The Grounds of Appeal, as amended following a preliminary hearing of the appeal in this Employment Appeal Tribunal in April 2004, are twofold. Firstly that the Employment Tribunal gave insufficient reasons for its decision and secondly, a matter which was not raised at the Employment Tribunal, that the Appellant, on the facts found by the Employment Tribunal, had suffered an unlawful detriment in terms of Section 44 (1) (c) of the 1996 Act.
3. The relevant background facts, very fully set out in the Extended Reasons for the Decision at paragraphs 6 to 20, can here be briefly stated. The Respondent, Sherlock Jenkins Boswell, is a firm of architects with three partners. From 31 July 2000, the Appellant was employed by them as an architectural assistant, principally to assist one of the partners, Mr Sherlock, on a major and complex project. Because of a medical condition, the Appellant requested at the end of 2000 to be moved from the basement drawing office, where she felt that the poor air quality was detrimental to her health. She was allowed to move on a temporary basis and later refused to return when her new accommodation was needed for a more senior employee. The Respondent accepted that situation.
4. Concerns had arisen and had been aired between the partners as to the standard of the Appellant's work, but these had not been raised with her. In April 2001, Mr Sherlock was told by the client of the major project upon which he, the Appellant and another member of the firm were working, that the firm was underperforming and might lose the contract. Not being aware of this concern of the client, the Appellant wrote a letter dated 20 April 2001 to Mr Sherlock in what the Employment Tribunal described as "somewhat peremptory terms", raising a number of issues of concern to her but not specifically any health issues.
5. On 26 April, the Appellant was told that her employment would be terminated in the following September, after her examinations. Having then taken legal advice as to statutory rights following one year of employment, the Respondent gave the Appellant one month's notice of termination of her employment and the effective date of termination was 31 May 2001.
6. In her Originating Application, the Appellant complained that she had been unfairly dismissed by reason of having raised health and safety issues, that is to say the poor air quality in the basement office.
7. Having set out this history in much more detail, the Extended Reasons given by the Employment Tribunal continued as follows in paragraphs 23 to 26:

"23. For the reasons that were explained at the hearing, it is not necessary or appropriate for this Tribunal to determine the Technical issues as to the standard of ventilation in the basement of the Respondent's premises. The Tribunal is satisfied that the Applicant brought to the Respondent's attention, by reasonable means, her belief that the air quality in the basement was harmful or potentially harmful to her health, although she only linked the ventilation with her own health at the end of the year 2000, when steps were taken for the Applicant to move out of the basement.

24. To succeed in her claim, the Applicant has to prove that the fact that she raised the issue of her health in the context of the air conditioning in the basement was "the reason or……………the principle (sic) reason" for her dismissal.

25. The Tribunal finds that there were a number of factors which were ingredients in the Respondent's decision to dismiss the Applicant:

a) Dissatisfaction with the technical standard of the Applicants drawing work on the Ladycross Project.

b) The fact that the client on the Ladycross Project was threatening to withdraw instructions because of the unacceptable standard of the Respondent's work.

c) The recruitment in early April 2001 of Mrs Jane Keningley to carry out contract administration and other work which might otherwise have fallen to be performed by the Applicant.

d) The refusal of the Applicant to accede to the Respondent's request to return for a short period to work in the drawing office situated in the basement of the Respondent's office on the ground that it posed a risk to her health in that the poor air quality exacerbated her long standing chest condition.

e) The terms and content of the letter dated 20 April 2001 from the Applicant to Mr Sherlock.

f) Legal advice received from the Respondent's solicitors relating to the Applicant's statutory rights.

26. The reason given by the Respondent to the Applicant for her dismissal both orally and in the letter of dismissal, was that the Applicant's performance had not matched their expectations. The Tribunal finds on the evidence that the principle reason for the Applicant's dismissal was her perceived poor work performance, a view which had been held in good faith by Mr Sherlock for many months but which he had not communicated, except in general unspecific terms, to the Applicant. The threat from the Respondent's principle (sic) client to dismiss the Respondent from the Ladycross Project galvanised Mr Sherlock and his partners into taking decisive action. The other factors identified by the Tribunal played minor parts in the Respondents consideration; none by themselves would have resulted in the Applicant's dismissal. Among those other reasons was the raising by the Applicant of the issue of her health in relation to working in the basement."

8. In giving details in the amended Notice of Appeal and orally through Counsel today, the 'insufficient reasons' ground is argued on the basis that, having set out the six ingredients in the decision to dismiss, the Employment Tribunal make an unexplained leap to its conclusion that the principal reason was the Appellant's work performance.
9. The Notice of Appeal refers, in paragraph seven, to specific matters of evidence, which it is said the Employment Tribunal should have included in their Extended Reasons, with any explanations as to why that evidence was rejected or considered not relevant. It is trite law that an Employment Tribunal Decision must contain an outline of the story which has given rise to the complaint, a summary of the basic factual conclusions and the reasons which have led to those conclusions. The Decision need not, however, be, to quote Bingham LJ (as he then was) in Meek v City of Birmingham District Council [1987] IRLR 250 "an elaborate formalistic product of fine legal draftsmanship", nor need there be reference in the Decision to every aspect of the evidence.
10. We have not been persuaded that this Decision is deficient in reasoning. It is clear from paragraph 26, as already quoted, that the Employment Tribunal was satisfied that the threat of withdrawal of the major project was the factor that galvanized the Respondent into taking the decision to dismiss. There was ample evidence to support that conclusion of the Employment Tribunal and it is, in our view, very clearly set out in the Decision. That ground of appeal therefore fails.
11. As to the second ground, we are likewise unpersuaded. Section 44 of the Employment Rights Act 1996, does not apply where the detriment in question amounts to dismissal. The Appellant has been unable to demonstrate to our satisfaction, any detriment to her through health and safety disclosures other than, as the Employment Tribunal itself found, a factor which was an ingredient in the decision to dismiss. In any event, this is a new ground of complaint, not raised before the Employment Tribunal and one which, in our view, the Tribunal had no duty, in the circumstances, to bring to the attention of the Appellant; see for example Kumchyk v Derby City Council [1978] ICR 1116.
12. There are no exceptional circumstances, nor compelling reasons on the facts of this case why this Employment Appeal Tribunal should allow a wholly new claim to be raised before us for the first time.
13. The appeal is therefore dismissed.