Appeal No. EAT/80/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR K M HACK JP

	MRS T MARSLAND

MR N COOK	APPELLANT

PENNINE FIRE EXTINGUISHER SERVICES	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R LAMB
REPRESENTATIVE
Trade Union Full Time Officer

	JUDGE HULL QC:      The Appellant, Mr N Cook, who is now aged 29, was first employed by the Respondents' partnership who, as their name suggests, are concerned with servicing, repair and refurbishing of fire extinguishers of various sorts in their premises at Blackburn, in August 1987 and his employment ended on 30 October 1992 when, on the face of it, he resigned.  He complained that he was entitled, in all the circumstances, to treat his employer's conduct as repudiating his contract of service and that in those circumstances his resignation amounted to the acceptance of the repudiation, a fundamental breach by the employers, and that he was therefore, as a matter of law, dismissed.    

	On 30 November he applied to the Industrial Tribunal.  The Tribunal sat at Manchester under the chairmanship of Mr Heppell with his two industrial members and they promulgated their decision dismissing the application on 15 November 1993.  They found that Mr Cook had indeed resigned.  They considered his case which was really this.  He had discovered, by private study, that the firm were not complying with the provisions of a British Standard which they said they were complying with, in that a certain type of fire extinguisher included in it a cylinder of compressed carbon dioxide or other gas.  These cylinders, after 20 years, should under the British Standard be hydraulically tested.  Of course that is from a safety point of view because, if a cylinder of any sort under pressure fails with compressed gas in it, there may be a catastrophic explosion.  We do not of course know the size of the cylinders involved but that is a possibility.  Of course if they fail under hydraulic test, there will merely be a leakage of fluid and perhaps a small spurt of fluid because the hydraulic fluid or water, or whatever it is, it is not truly compressible and so cannot store energy in the same way as a gas.  

	That is the provision, the British Standard.  In fact, what happened was that, as the Tribunal found, it was very rare for cylinders to be hydraulically tested but they were examined instead and if there were cracks they would be discarded.  And in fact, the customer was charged for hydraulic testing when in fact the hydraulic testing had not been carried out.  That was the evidence.  So they had to consider that.  Not every failure to comply with a British Standard can be said to be a breach of anything in particular, still less that it is, as is alleged, a crime or a breach of contract with any particular employee which goes to the root of his contract, but it could be, clearly.  And those were matters which had to be considered carefully by the Tribunal.

	The employers' case was that although they did not regularly hydraulically test them, there was this other test and they were in fact engaged in putting matters right and raising their standards.  They were considering the use of a machine.

	All that had to be considered but the Tribunal also said as follows.  They said that Mr Cook had, in fact, not said anything about this matter, until he learned that a person whom he thought should not be promoted, had been promoted; and he then, for the first time, resigned.  It was not until after he resigned that he made this complaint.

	The Tribunal of course heard all the evidence.  They said the evidence of the Respondents' witnesses was completely contrary to the Applicant's evidence.  They agreed that the Applicant had never raised the matter at a meeting in 1991, nor had he raised it at the meeting where the promotion of this other man, essentially apparently a rival of Mr Cook, had been mentioned and the Applicant, they say, objected to the appointment of Mr Spencer, stating the job had not been advertised and expressing the view that it should have been given to Mr Beckingham who happens to be the brother-in-law of Mr Jackson (that was one of the partners), whose daughter is living with the Applicant.  

	Mr Jackson and Mr Spencer stated they were both present when the Applicant saw Mr Jackson on the morning of 14 October and at that meeting he specifically asked if he could be made redundant since he wanted to leave.  The employers considered that and they said that to make him redundant would be fraudulent, they could not possibly say that their requirement for his services had diminished or that any of the other requirements for redundancy were fulfilled.  And then he said: 

		"What about the fraud that you are doing with respect to the testing of cylinders?".  

That was the first time the Applicant had ever mentioned this question of the testing of cylinders.  They say, going on: 

		"The weight of evidence was completely against the applicant, and if the evidence of the respondent's witnesses was true the applicant had not raised this matter until after he said he was leaving".

	And their findings of fact, after considering all the evidence, were as follows.  The evidence of the Respondents' witnesses was to be preferred to that of the Applicant, so there was no satisfactory evidence that he had ever raised the matter that he said caused him to resign until after he resigned.  Mr Lamb says that is wrong.  He says that in fact the Applicant had raised the matter earlier and had put the matter to the management earlier, but that is not a question on which we can adjudicate, it is a question of fact for the Industrial Tribunal and not for us and the mere fact that the Applicant said that and supported that, as best he could, is a matter for the Tribunal.  He was contradicted and the Tribunal, as I say, found that he first raised the matter after he had resigned.  They go on to say:

		"14(b)  The actions of the respondent in relation to the hydraulic testing reprehensible as they might be, were not such as to constitute a breach of the contract of employment".

	I would add to that the earlier finding that it was quite unknown that any such cylinder should explode, and that may have been a very important matter in considering the seriousness of this failure to comply with the terms of the British Standard.  Then finally they say:

		"14(c)  Even if this was not so [and they are referring to their earlier finding] the applicant on his own evidence had delayed his resignation for nearly a year after first mentioning the matter to his employers - in effect, as they found, waiving his right to treat his contract as being terminated by the employer".

	These are findings of fact which we have considered carefully.  We have all read all the papers in the case and notwithstanding what has been said to us by Mr Lamb, it appears to us that these findings of fact conclude the matter against the Applicant.  He, it was found, was not entitled to resign on the basis that the contract had been repudiated by his employers and indeed, it would be a just statement to say, that not merely did the Tribunal prefer the evidence of the employers on all the matters which were raised, but they gave some very good reasons for preferring it, having of course seen all these witnesses give evidence and being cross-examined and having studied all the documents in the case.

	In those circumstances it is quite pointless for us to say that possibly, if we had been sitting, we might have reached a different decision or a different Tribunal might have reached a different decision, those are all points which are inherent in the nature of a Tribunal of fact, a jury, magistrates, whoever it may be, in this case the experienced industrial jury, which an Industrial Tribunal constitutes.  And having heard all that has been said by Mr Lamb and having considered the papers with a certain amount of anxiety, as clearly we must when there is an allegation of safety precautions not being observed, we have come to the conclusion that no point of law is raised.  This case is in our list under our Practice Directions to see whether we can, with Mr Lamb's assistance and Mr Cook's assistance, discover any point of law.  We cannot, and in those circumstances we have to say that the appeal must be dismissed now.