Appeal No.	 EAT/210/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 February 1997

Before
HIS HONOUR JUDGE N BUTTER QC
MRS T A MARSLAND
MR J R RIVERS

MR A E HITT	APPELLANT

LIGHTNING DESPATCH LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR WILLIAM REES
(of Counsel)
Messrs Chatterjea Tilbrook & Co
Solicitors
8a Castle Street
Kingston-upon-Thames
Surrey
KT1 1SS	
For the Respondents	MISS S HEAL
(of Counsel)
Lovell White Durrant
Solicitors
65 Holborn Viaduct
London
EC1A 2DY	

	JUDGE BUTTER QC:   This case has an unfortunate procedural history. That is, in part, relied upon by Mr Rees for the appellant in his application that we should order the Chairman to provide Notes of Evidence. I need not at this stage go through the procedural background or the chronology, it is sufficient for us to say that we have taken that into account in arriving at our decision on this issue.

	The argument before the tribunal on the merits of the case is that there was sufficient evidence before the Industrial Tribunal for it to have made a clear finding of designation in relation to the appellant in its decision within section 57A(1)(a) of the Act.

	In considering whether Notes of Evidence should be provided it is appropriate that we should have regard to the leading decision on the matter, namely, the decision of this tribunal in Webb v Anglian Water Authority [1981] ICR 811. The principles to be applied are set out by Browne-Wilkinson J, as he then was, at page 813. They have been read to us, and it is not necessary for me burden the length of this judgment by reading out those passages in turn.

	There is in addition the Practice Direction of this Court, and again the relevant paragraph is paragraph 7 to which we have been referred.

	The argument here is that it is necessary to look at the whole case in the round in order to decide what facts were before the tribunal at its original hearing. It is however accepted, indeed it is part of the appellant’s case, that there was evidence before that tribunal to entitle or, it would be said for the appellant, to require them to make a finding of designation. In their extended reasons, given many months after the original hearing, the tribunal have considered that issue and have rejected that particular contention. 

	Today we would be willing to cut through the Practice Direction or to depart from the strict words of Browne-Wilkinson J in Webb v Anglian Water Authority if we were satisfied that the interests of justice so require. Having considered the matter with some care, however, we are unable to reach that conclusion. We do not consider that it is either necessary or appropriate for us to direct the Chairman to provide the Notes of Evidence; and in all the circumstances, the application is refused.

[Court rises]

	JUDGE BUTTER QC:   We have already referred to the unfortunate procedural history of the case, and there is not a great deal more that need be said about the chronology. On 3rd May 1996, the Industrial Tribunal at London (South) heard an application by Mr Hitt, he was represented by Mr Baker of Counsel, the respondents, the employers were not legally represented but appeared through a director, a Mr Mellon. 

	The unanimous decision of the tribunal, promulgated on 27th June 1996, was that the applicant was unfairly dismissed and was entitled to compensation. It was hoped that agreement could be reached concerning the amount of compensation, but in the result no such agreement was reached.

	The tribunal gave summary reasons which were brief, they said:

“1.	The Applicant was dismissed by the Respondent and the effective date of termination of his employment was 16 June 1995. 
2.	The principal reason for dismissal was the action of the Applicant on the evening of 14 June 1995 when he refused to drive an articulated lorry, the rear doors of the trailer of which were damaged so that they could not be closed and locked in the usual manner.”

It is necessary that I should read the whole of paragraph 3 of the summary reasons, they said:

“3.	Having regard to the provisions of section 57(3) [which may well have been a mistake for 57A] of the Employment Protection (Consolidation) Act 1978, the dismissal was unfair because:
(i) there being no safety representative or safety committee, the Applicant brought to the attention of the depot management the condition of the trailer door which he had damaged in driving the vehicle out of the depot;
(ii) he reasonably believe that the condition of the doors made them potentially harmful to safety in that they were liable to become unlocked and to fly open while the loaded vehicle was in transit;
(iii) he reasonably believed that the forced closure and securing of the doors which had been effected after the damage did not remove the danger, and he took steps to protect himself and, he reasonably believed other persons from the danger by refusing to drive the vehicle to Birmingham;
(iv) a refusal to drive the vehicle was appropriate in all the circumstances, there being no one available with sufficient engineering knowledge properly to advise the Applicant or the depot management at the material time.”

I pause to say that the words used in that paragraph are directly related to the words of section 57A(1)(c) and (d) of the Act. The tribunal continued in paragraph 4 by saying:

“4.	The letter of dismissal dated 16 June 1995 made no reference to the events of 14 June 1995 as a reason for dismissal, and the evidence adduced in relation to the reasons for dismissal given in that letter did not, on the balance of probability, prove that dismissal was fair for such reasons.”

	The matter came before the Industrial Tribunal again on 11th November 1996. This time Mr Rees, who has appeared today, represented the applicant; again the respondents were represented by Mr Mellon. The tribunal’s decision was that the applicant was entitled to compensation amounting to £27,983 by reason of his unfair dismissal by the respondent. The tribunal expressly referred to section 57A of the Act. Then having dealt with the basic award, they go on to say, and this is the crucial factor which has given rise to the appeal:

“4	The Applicant is entitled to a special award under section 75A(1) which is 104 week’s pay, or £23,920, the reason for the dismissal having been an inadmissible reason as defined in section 72(2) and section 72(3).”

The tribunal then made a compensatory award.

	It appears that when making those awards the members of the tribunal did not refer back or refer sufficiently back to the basis of their decision in May 1996. It will be appreciated that at that stage extended reasons had not been given. A special award is appropriate or may be appropriate under section 57A(1)(a) or (b), (there is no suggestion that (b) would be applicable here) but it is not permitted under (c) or (d). The tribunal, on our understanding and assessment of the position, realised that it had made an error for which the Chairman accepted responsibility. On his instructions,  a letter was written dated 19th November 1996 referring to, in effect, the mistake which had been made, and indicating that the tribunal on its own motion proposed to review its decision as to compensation. In our view, that was a sensible and realistic course for the Chairman to take, and we are satisfied that it lay within his powers. 

	Objections were taken to the review, the Industrial Tribunal heard argument, but decided to review its earlier decision.

	On 18th December 1996, the tribunal concluded:

“The unanimous decision of the Tribunal is that its decision as to remedies promulgated on 22 November 1996 should be reviewed of the Tribunal’s own motion. On reviewing that decision the Tribunal hereby revokes it and orders a re-hearing, if possible before the same Tribunal, on Tuesday, 25 February 1997.”

That is to say, next week. The tribunal later gave reasons for its decision. 

	The extended reasons for the May hearing decision are to be found at page 29 and the following pages of our bundle, they were finally sent out on 2nd January 1997. In those extended reasons, the tribunal dealt with the evidence which they had received and set out the facts with a fair degree of detail. Paragraph 5 is of importance, but I need not lengthen this judgment by reading out that paragraph. 

	They dealt with the events of 14th June 1995 involving the damage to the vehicle in question, and because they had been sufficiently concerned about the door mechanism, they paid a site visit to view not the same vehicle but a similar vehicle. It was agreed on the evidence that the locking bar would not engage with the application of normal manual force and that mechanical force from a fork lift truck was needed to secure it. 

	In paragraph 9 of their extended reasons, the tribunal drew attention to the conflict of evidence with regard to the events on the evening subsequent to the damage. The applicant’s evidence was that Mr Gold has insisted that the applicant drove the vehicle to Birmingham after the door had been closed and secured, but when the applicant refused, Mr Gold telephoned a director in Birmingham, the director spoke to the applicant on the telephone and told him that he was suspended and ordered to leave the premises and told the applicant  to telephone the next day. When he did so, he was told that the decision as to whether to sack him would be made in the next two days. The evidence on the other side was that the incident was witnessed by Mr Gold and others, that there was a heated argument with Mr Gold about the applicant’s careless driving, whereupon the applicant left the site. On 16th June 1995 the applicant was told by Mr Gold that he was dismissed and subsequently he received a letter dated the same date confirming the dismissal. 

	The tribunal set out its conclusions in paragraph 11. In paragraph 12 they referred to section 57A. In paragraph 13, which must be read in conjunction with the paragraph 5 to which I made reference earlier, they dealt with the question of designation within the meaning of section 57A(1)(a). Again I need not read out that paragraph in full, but they said in the last few lines:

“... Unless all employees are to be regarded as within the scope of section 57A(1)(a) by reason of the duties imposed on them by the Health and Safety at Work etc Act 1974, section 57A(1)(a) had no direct bearing on the events of 14 June 1995, in that the Applicant was not seeking to operate under that section. We do not subscribe to so wide an interpretation of section 57A(1)(a) having regard to what follows in section 57A(1)(c).”

They held in the following paragraph that there was no evidence that section 57A(1)(b) had application.

	They then turned to section 57A(1)(c), and asked the question:

“Was the damage such as to create circumstances which the Applicant reasonably believed were harmful, or potentially harmful, to health and safety?”

The tribunal expressed itself as being: 

“... satisfied that from the evidence that the damage was such that the Applicant’s belief that they might open in transit with a loaded trailer, with consequent danger to other road users, was reasonably held.”

Accordingly, they decided that, there being little evidence to the contrary, the applicant was able to satisfy section 57A(1)(c), and it followed that he was unfairly dismissed. They gave leave for the terms of compensation to be agreed or otherwise for the matter to return.

	In the appeal before us many arguments have been raised on behalf of the employee. It has been said that there were a number of procedural irregularities, for example, that no note was made by the Chairman of the tribunal on the occasion of the site visit to the vehicle which was seen. We do not, with respect, consider that there is any substance to that particular point. It is argued that the extended reasons were written with hindsight and that it is not safe for us to rely upon them. It is said that a so-called key document was handed to the tribunal below and went astray. The main relevance of that is as to what was argued before the Industrial Tribunal at the hearing in May 1996. The respondents to the appeal today say that section 57A(1)(a) was never argued, the appellants say it was.

	There is nothing in the original application or statement to suggest that the applicant was arguing that he was designated within the meaning of the Act, although there is a reference in the so-called key document in one single sentence to the fact that:

“The Applicant would also appear to qualify for a Special Award.”

	We have not thought it necessary to order that Notes of Evidence be produced. In the circumstances however we think it fair to assume in favour of the applicant that the question of section 57A(1)(a) was raised.

	It is plain to us that the Industrial Tribunal did not accept that the applicant’s  case came within that subsection. That, on our reading, was the effect of the summary decision as is confirmed in the detailed extended reasons. We do not consider that there is any conflict between the summary decision and the extended reasons.

	We have heard argument as to the question of designation. We have looked de bene esse at the affidavit of Mr Eagle, it is not evidence properly before us or before the Industrial Tribunal, but we were told it was mentioned at the last hearing. We see no reason to believe that it would have affected the tribunal’s decision.

	We have considered the numerous points made. In the end we are entirely unable to accept that any error of law has been shown to exist on the part of the tribunal. The Industrial Tribunal reached a decision on liability to which they were, we have no doubt, entitled to come, the validity of their decision is not affected by the procedural points which have been taken. We unanimously conclude that there is no error of law, and in these circumstances and for these reasons the appeal fails.

[Further submissions - Court rises]

	JUDGE BUTTER QC:   As I have already given two judgments in this case earlier today, I hope that I may be forgiven  if I express our decision very shortly. Whether the Industrial Tribunal took into account the special award in reaching its decision as to compensation is uncertain. We take on board the point that there should be finality of litigation, but we think that in the circumstances of this case the interests of justice require the matter should be considered further by the same Industrial Tribunal as they themselves wish. We express no view as to whether the award of compensation should be the same or different from that earlier awarded, that is a matter for them to determine in the light of arguments presented to them.