Appeal No.	 EAT/488/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 July 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS R A VICKERS
MRS T A MARSLAND

HARVEST PRESS LTD	APPELLANTS

MR T J McCAFFREY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR M YOUNG
(of Counsel)
H Montlake & Co
197 High Road
Ilford
Essex  IG1 1LX	

MR JUSTICE MORISON:	The purpose of this hearing is to determine whether there is an arguable point of law in relation to an appeal which Harvest Press Ltd, the employers, wish to make against the unanimous decision of an Employment Tribunal.  The Tribunal concluded that the Applicant, Mr McCaffrey, had been unfairly dismissed by the employers under section 100 subsection (1) subparagraph (d) of the Employment Rights Act 1996 and secondly, that the Applicant is entitled to a monetary award of £7,424.00.

1	The essential findings of fact of the Employment Tribunal which are necessary to recite for the purposes of this hearing are these.  The Applicant had a short period of service with his employers.  He started work in late June 1998 as a nightshift number 1 machine minder and worked nightshifts with one other person, a Mr Huson, who was considerably younger than himself.  The Applicant had reason to complain to his superiors about Mr Huson’s behaviour and on 9 September 1998, the Manager asked Mr Huson to come and see him the next morning.  But on the nightshift beginning on the evening of 9 September, Mr Huson had obviously deduced that Mr McCaffrey, the Applicant, had made a complaint about him, and wanted to have it out with the Applicant.  

2	The Tribunal noted that there was a conflict of evidence as to precisely what happened but they accepted, having heard the evidence, Mr Huson became very abusive and when the Applicant went into the office to telephone his Manager that evening, Mr Huson stood over him very closely and shouted abuse at him.  So alarmed was Mr McCaffrey that he did not feel it safe to make the telephone call there but immediately went home by car and telephoned from, as the Tribunal put it, “the safety of his own home”.  He told his Manager what had happened and subsequently spoke to a more senior person in the company.  The Tribunal found that the employee said that he would only return to work if he had assurances about his safety which in effect meant Mr Huson being removed or dismissed. 

3	Mr Best, the Director, spoke to Mr Huson and some other workers and decided to accept Mr Huson’s account of the incident but he did not think of getting hold of Mr McCaffrey to find out from him what his version was.  The next day, the Director telephoned the Applicant and said that he had resigned by walking out in the middle of the shift, said he would send him his P45 and that was the end of the employment relationship.  

4	The Tribunal reminded themselves of section 100 of the Employment Rights Act 1996, subsection (1) (d) provides that:

“(1)		An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason … for the dismissal is that:
(d)	in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.”

Having set out the submissions of the parties, the Tribunal then gave their decision.  They dealt with the submission which was made to them and repeated to us by Mr Young of Counsel that the word ‘danger’ in section 100 (1)(d) is limited to dangers arising out of the workplace itself, and it does not cover dangers such as are alleged in this case, which are caused by the behaviour of work colleagues.  The Tribunal concluded that the effect of Council Directive 89/391 was that the word ‘danger’ was used without limitation in section 100 (1)(d) and they said that it seemed to them that Parliament extended it to cover any danger however originating.  They did not gain further assistance, they thought, from some statutory regulations made in 1992.  

5	They then turned to the question as to whether Mr McCaffrey had been dismissed.  The Tribunal concluded that he was.  They said this:

“Mr McCaffrey did not in fact terminate his employment but sought assurances as to his safety.  The Respondent took the initiative in treating that as a resignation and we take the view that the reality is that it was the Respondent which terminated his employment.”

They went on to say that:

“the reason why the Respondent terminated Mr McCaffrey’s employment was in the words of Mr Best [the Director] that he had walked out on the job. In other words, the reason for the dismissal was that Mr McCaffrey had left his place of work.”

6	They then considered whether there was a danger and whether Mr McCaffrey reasonably thought that the danger was serious and imminent.  They referred to their findings of fact as to the incident itself and indicated that Mr McCaffrey could not predict what was going to happen next.  They were alone in the premises and the Tribunal concluded that one could not say that he was not in danger, and given the proximity of Mr Huson, a man half his age, it was reasonable to believe that that danger was serious and imminent.  They then dealt with a suggestion that Mr McCaffrey should have asserted his authority but the Tribunal concluded that that was unrealistic.  There was no other suggestion for averting the danger and it did not seem to the Tribunal that there was any way of averting the danger otherwise than by leaving the premises.  Accordingly, they found an unfair dismissal within section 100(1)(d).  They then went on to deal with remedy which is not an issue in this appeal.  

7	Mr Young, on behalf of the employer Appellants, effectively raises the same arguments that were raised before the Employment Tribunal.  He submits that there was no dismissal and that the Employment Tribunal had erred in law in concluding that there was.  He submitted that there was a conflict between what was found in paragraph 8 on the one hand, and paragraph 16 on the other.  He said that the employee had in effect presented the employers with an ultimatum, namely unless Mr Huson was moved the employee was not returning to work.  

8	Having decided not to move Mr Huson, the Applicant must be taken to have resigned.  He said that the finding that the employers took the initiative in treating that as a resignation was the only logical view of the facts as found; that there was no basis in the evidence for the Employment Tribunal to take the view that the reality was that it was the employers which had terminated the employment. 

9	The second ground of appeal relates to the words “in circumstances of danger” and it was submitted to us as it was to the Employment Tribunal that the circumstances of danger referred to in the statute do not include dangers caused by individual action of a fellow employee, but rather that the circumstances of danger related to the circumstances of the work place itself.  And he relied as he did before the Employment Tribunal on the directive and on section 2(4) of the European Communities Act 1972 and the obligation on the United Kingdom, pursuant to that Act to give effect to community law.  

10	He went on to say than any alternative conclusion would lead to an impossible situation for employers.  Here was an allegation that a fellow employee was acting in a dangerous manner and rendering the workplace unsafe, yet the employers had to take a view whether that was so and it put them into an impossible position because if they dismissed Mr Huson, they would be faced with a claim by him, and if they did not, they would be faced with a claim by the Applicant, Mr McCaffrey as happened in this case.  Therefore the employers were on the horns of a dilemma.  A solution to that dilemma was to conclude that the circumstances of danger referred to in the Act, must mean the circumstances of danger relating to the premises themselves.  

11	Then it is submitted that the Tribunal substituted their own decision for that of the employers in the conclusion as to whether the Applicant reasonably believed there to be a danger within the meaning of the section.  The employers concluded that there was no danger, but that was a decision that they were entitled to arrive at.  

12	The next ground is that the conclusion of the Employment Tribunal that the assertion of authority by the Applicant over Mr Huson appeared unrealistic as an alternative for averting the danger, was wrong.  The best solution of the dispute was for one of the men to go home.  To hold that the man in authority could not reasonably have sent the other home is plainly wrong, given all the other facts as found by the Employment Tribunal and therefore, the Tribunal had erred in law in arriving at a perverse conclusion.  

13	Despite the care with which those arguments have been presented, we have not been persuaded that there are arguable points of law fit for a full and further hearing.  As to whether there was a dismissal or not, it seems to us that not only was the decision of the Employment Tribunal not erroneous, but it was one with which we would have whole-heartedly agreed had we been called upon to make the decision ourselves.

14	As the Tribunal noted, Mr McCaffrey was doing the opposite of terminating his employment on the night in question.  He was seeking an assurance as to his safety and indicating that he would remain in a place of danger unless something was done about Mr Huson.  He was seeking to maintain his employment by seeking to persuade the employers to ‘do the necessary’ with Mr Huson so as to make his place at work safe.  Accordingly, it seems to us that the decision on the question as to whether there was a dismissal was obviously right, and there is no arguable point of law.  

15	As to the submission that the circumstances of danger referred to in section 100(1)(d) means the circumstances of danger generated by the workplace itself, it seems to us that that is too narrow a view of words which are quite general.  It seems to us clear that premises or the place of work may become dangerous as a result of the presence or absence of an employee.  For example, premises might become unsafe as a result of the presence of an unskilled and untrained employee working on dangerous processes in the workplace where the danger of a mistake is not just to that employee, but to the colleagues who are working with him.  It seems to us that the circumstances of danger contemplated by section 100(1)(d) would be apt to cover such a situation and it seems to us that had a fellow employee walked out because of the presence of an unskilled and untrained operative in those circumstances, he would be entitled to the protection of the legislation. 

16	Another example might be the absence of an inspector or foreman who had specific safety responsibilities and who was required to be there as a result of the dangerous processes which were being carried on.  Again, we can contemplate circumstances in which a fellow employee would be entitled to say that his workplace was dangerous as a result of the absence of the specific person in charge of the safety responsibilities at that place of work.  Another example might be where there was a foolhardy employee who, not through lack of training, but through determination to indulge in horseplay, persisted in adopting dangerous practices in the place of work so as to render the place at work dangerous.  It seems to us that that might again be a situation in which fellow employees would be entitled to say to their employer; “so long as this person is at the workplace, my workplace is dangerous and I will not be willing to stay there during this time”.  Again, it seems to us that that falls within the words “in the circumstances of danger” and there is nothing in the statute to indicate that these examples would be outwith the protection granted by section 100.  

17	Accordingly, we reject the ground of appeal, which is the second ground.  We agree with the Employment Tribunal who concluded that the word danger is used without limitation in section 100(1)(d) and that Parliament was likely to have intended those words to cover any danger however originating.  

18	As to the next ground of appeal, that is, where it is said that in arriving at their conclusion the Tribunal should have had regard to the obligations of the employer to the other employee, it seems to us that that is not a point which gives rise to an arguable point of law.  Obviously in arriving at their conclusion the Tribunal had well in mind the potential dilemma to which Counsel referred.  We have to say that we do not see the dilemma that has been urged upon us in this case.  It seems to us that any sensible employer faced with this situation would have wished to have interviewed Mr McCaffrey to find out what his concerns were and to have interviewed the other person and possibly interviewed the two together, if needs be, so that they could form a view as to whether Mr McCaffrey was genuine in his concerns about his safety.  If they were satisfied that the incident that had taken place was simply a one-off incident and that that there was no real risk of Mr Huson behaving inappropriately or dangerously in the future, then of course they would be entitled to say so and to indicate to Mr McCaffrey that in those circumstances, if he didn’t turn up for his next shift, he would be taken to be in serious breach of contract, and then terminated his employment for that reason.  There was therefore, in truth, no dilemma for them if they were prepared to act as employers should have done in a case such as this.  Accordingly, we reject the dilemma theory which was argued before us by Mr Young.

19	As to the question as to whether Mr Huson should have been sent home, that was a judgment on the facts and on the evidence for the Employment Tribunal and we are not prepared to say that that raises an arguable point of law.  

20	It follows therefore that despite the way the arguments have been presented to us by Mr Young, we are not persuaded that there is an arguable point of law raised by this appeal, which must therefore be dismissed.

21	Mr Young has asked us for leave to appeal.  We refuse that application for the reasons expressed in the judgment which has just been given.  We are of the view that the scope of section 100 (1)(d) is intended to be wide.  We see no reason why there should be any limitation on the circumstances of danger for the reasons that we have given.  If the employers really wish to take this matter further, then they must persuade the Court of Appeal that we are wrong in our construction of the statute.  It does not seem to us that this raises any point of principle which requires any determination since with the experience of the lay members, we are satisfied that the Act should be given a sensible and unconstricted interpretation in the interests of health and safety at work.