United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0210/11/SM

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

            At the Tribunal

            On 11 October 2011

 

 

 

Before

HIS HONOUR JUDGE McMULLEN QC

MR B BEYNON

DR B V FITZGERALD MBE LLD FRSA

 

 

 

 

 

MR D JOAO                                                                                                             APPELLANT

 

 

 

 

 

 

JURYS HOTEL MANAGEMENT UK LTD                                                       RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR D JOAO (The Appellant in Person)
For the Respondent	MR CHARLES SPARLING (of Counsel) Instructed by: TTP LLP 1 Redcliff Street Bristol BS1 6TP

 

 

SUMMARY

 

VICTIMISATION DISCRIMINATION – Health and safety

 

The Respondent rostered the Claimant to work nine consecutive nights and dismissed him after he complained.  Under WTR Reg 11 this pattern is apparently not unlawful.  The Employment Tribunal failed to consider whether the Claimant reasonably believed it was, concluding that, since it was not unlawful, no-one could think otherwise.  The Respondent changed its reason for dismissal.  Appeal allowed and remitted to fresh Employment Tribunal.

 

 

 

HIS HONOUR JUDGE McMULLEN QC

 

1.              This case is about a dismissal, said to be unfair because the Claimant had legitimately raised queries about the health and safety of his working environment.  This is the Judgment of the court to which all members appointed by statute for their diverse, specialist experience, have contributed.  We will refer to the parties as the Claimant and the Respondent.

 

Introduction

2.              It is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal sitting at Watford, under the chairmanship of Employment Judge Mahoney, registered with Reasons on 2 November 2010.  The Claimant, represents himself and the Respondent is represented by Mr Charles Sparling of counsel.

 

3.              The Claimant claimed an unlawful deduction of wages.  He succeeded and has been paid as ordered, £36.68, so nothing arises about that.  He contended his dismissal was automatically unfair, contrary to s.100(1)(c) of the Employment Rights Act 1996, which claim the Tribunal dismissed.  It also dismissed his claim for wrongful dismissal, in that he was not paid a week’s pay in lieu of notice.  The Tribunal did not make a finding in its executive Judgment, but it is clear from the findings, that he failed on that point too.

 

4.              The Claimant appeals against the unsuccessful parts of his claim, and the case has had an up and down history since.  The sift of the Notice of Appeal was conducted by Langstaff J who considered that it had no reasonable prospect of success.  The Claimant appeared at a rule 3(10) hearing, with the assistance of counsel instructed under the ELAA Scheme.  HHJ David Richardson considered that the point about s.100(1)(c), and also a point as to the changing reasons given by the Respondent for dismissal, variously performance and gross misconduct, had reasonable prospects of success.

 

5.              Mr Kibling put in a skeleton argument but the Claimant was unable to obtain his assistance through the Bar Pro Bono Unit for today’s hearing and so he is left on his own.  He has produced a skeleton argument which we had occasion to compliment him on and suggested to him that it said everything in clear form that he might want to say, and so spared him the stress of addressing us point by point.

 

6.              The skeleton argument adduced for the Respondent by Mr Sparling focused upon the original skeleton. In commendably professional fashion, he has been able to adapt his submissions orally, in line with the new home-made skeleton argument of the Claimant.

 

The legislation

7.              So far as is relevant to the issue now in dispute, s.100(1)(c) of the Employment Rights Act 1996 provides as follows:

 

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that:-

(c) being an employee at a place where:-

(i) there was no such representative or safety committee,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety...”

 

The facts

8.              Since we told the parties at the end of the hearing that we will allow the appeal and send it to be heard again, it is necessary for us to say of the facts sufficient only for our thinking to be revealed.

 

9.              The Claimant was engaged by the Respondent, a large hotel chain, on 12 February 2010 to work on a shift pattern of five nights out of seven, so that his hours of work were 11.00pm to 7.30am the next day, with a 30 minute unpaid break. He was given standard particulars which included provisions relating to hours of work and overtime.  He would be on a probationary period for six months and, if dismissed during that period, would receive one week’s pay.

 

10.          The Claimant was given a rota which included working for five out of seven days, but very quickly it emerged that he was to be put on nine consecutive nights.  On 24 February 2010 he raised a concern with his manager, Mr Khanderia.  According to Mr Khanderia’s email, the Claimant was plainly upset and talking about health and safety rules and law.  Mr Khanderia tried to convince him that working nine days without a break was “okay”.  At that time, Mr Khanderia formed the view that the Claimant should no longer be employed.  That, it seems to us, is the meaning of the email:

 

“If we don’t want to take his favor and compromise on his work standard I can do porter job and let Rupal does night [...] I feel we should not rely upon anyone and stick to our team work policy and unique working culture.”

 

11.          At a meeting that day chaired by a manager, Lisa Kearney, issues were raised as to both his gross misconduct and his performance.  He raised issues about pay and working methods.  He was told that the matters related to “your performance and attitude”.

 

12.          The Claimant was dismissed by an undated letter, following that meeting, saying this:

 

“Further to the meeting held on the 24th February 2010 with regard to your performance as Night Porter, I wish to confirm that as advised, your employment with Jurys Inn will end with immediate effect.”

 

13.          There is a reference to the six-month probationary period, and to an opportunity which had been given, it is said, to improve his performance.  Performance is mentioned three times in this letter and so is probation, but there is no mention of the one week’s payment.

 

14.          The Tribunal decided that the Claimant had been dismissed for gross misconduct, that is it accepted the latest utterance of the Respondent formulated for its defence by counsel at the hearing, knowing that there was a change of approach by the Respondent as to the reason for dismissal.  The Tribunal found that the reason for dismissal was as follows:

 

“9.2 In respect of gross misconduct and the breach of contract claim the determination of the Tribunal is as follows.  Telling Mr Khanderia to ‘fuck off’ (when no other junior members of staff were present but only another manager) would not of itself amount to gross misconduct.  However we are satisfied that the [the Claimant] did not tell the truth to Mr Khanderia about what he had been told by Mrs Costea.  That was in fact gross misconduct by him and in those circumstances the respondent was entitled to dismiss him summarily.  Therefore the claim of breach of conduct fails.”

 

15.          In other words, of two reasons relied on by the Respondent as constituting gross misconduct, only one of them succeeded - not telling the truth to Mrs Costea - and so the breach of contract claim failed.

 

16.          It then went on to consider the automatic unfair dismissal under section 100(1)(c).  It had by this stage addressed itself correctly on the statute, citing it in full, and it came to these conclusions.

 

“9.3 In respect of the unfair dismissal claim, the tribunal has taken into account the fact that under the Working Time Regulations, and particularly Regulation 11, relating to weekly rest periods, Parliament has determined that it is an entitlement of an employer to only provide one uninterrupted rest period of not less than 48 hours in each 14 day period of work if in fact it feels it appropriate.  That is Regulation 11(2)(b).  So the position, as far as the Tribunal is concerned, is that it was quite lawful for the employers to require the claimant to work 9 consecutive nights both under the terms and conditions of his contract of employment but also as a matter of law as set out in the Working Time Regulations.

9.4  In those circumstances we cannot see how there could be reasonable grounds for the claimant thinking there had been a breach of health and safety, particularly when Parliament has stated that it is perfectly lawful for such an approach to be taken.

9.5  The tribunal further cannot see also how the claimant being required to do pot washing for a period of time, possibly an hour in the morning, could also on a similar approach be potentially harmful to health.

9.6  So in those circumstances the claimant’s claim of automatically unfair dismissal also fails.”

 

The arguments and conclusions

17.          Emerging from the skeleton argument of the Claimant and the response by Mr Sparling, the first issue relates to what is described as a question of law: that the Tribunal did not apply its self-direction to the circumstances here.  It is contended that the Tribunal should have looked carefully at what was in the Claimant’s mind, that is subjectively, and decided whether that constituted reasonable grounds for a belief that the Respondent was not acting in accordance with the Working Time Regulations 1998 and/or the contract.

 

18.          In our judgment this argument succeeds.  The Tribunal has only one factor in mind.  It is that nine consecutive nights working is permissible under the Regulations.  That may be a surprise to some people, but is not challenged here.  The Tribunal is drawn ineluctably into its conclusion that, because that is the law, a person could not reasonably believe it to be unlawful.

That we consider to be a disconnect.  Indeed, Mr Sparling does not challenge that proposition.  What he does say, however, is that the Tribunal made clear findings as to the reason for dismissal: it was not to do with the issue of health and safety.

 

19.          In our judgment, there plainly was a concern in the Claimant’s mind about health and safety and the law, as is exhibited by Mr Khanderia’s email, recording the Claimant’s concern, and that should have been investigated carefully by the Employment Tribunal.  It goes without saying that even though working nine days is apparently lawful, a person can reasonably hold the belief that it is not.  That needs careful investigation which was not done here.  The Tribunal moved straight from its finding as to what the law is to its finding that a person could not reasonably believe it was otherwise.  That is an error of law.  The matter must be considered by an Employment Tribunal.

 

20.          The second matter relates to the changing position of the Respondent.  Although the Respondent produced evidence as to what it meant by performance, the Tribunal was bound to make a clear finding on the case which was made by the Claimant that the Respondent had resiled from its original reason based on performance and fashioned it into gross misconduct.

 

21.          In those circumstances, we consider that point needs further attention, too.  We have stood back from this case to consider whether, notwithstanding the misdirection in the application of the law in paragraphs 9.3-9.6, the decision is unarguably right.  We cannot say that, and so the matter must be heard again.

 

Disposal

22.          We do not consider it expeditious to divide the case up, save for retaining the simple finding of an unlawful deduction, and so this matter will be considered again.

 

23.          Having heard submissions, we form the view that this should go back to a differently constituted Tribunal.  Mr Sparling is right that if there is a simple misdirection on the law, the Tribunal could re-hear the matter, this time with the correct direction.  But there is more to this than the application of s.100(1)(c), for it also involves what we consider is the differing approach of the Respondent to the reason for dismissal.

 

24.          We do not consider it fair to this Employment Tribunal for it to have to hear the matter again in the light of its findings.  Mr Joao, not surprisingly, asked for the case to go to a different Tribunal, Mr Sparling to the same Tribunal.  This was a one-day simple case; proportionately it can go to a different Tribunal.  We are not indicating that we do not have confidence in the Employment Tribunal to deal with the matter dispassionately, but we think it not fair to it, in the light of the errors which we have found, for it to have to consider it again.

 

25.          The Judgment in relation to automatic unfair dismissal is set aside.  Insofar as the Tribunal appears to have dismissed the claim for one week’s notice money, that too, will be heard again, but the finding on unlawful deduction will remain.