Appeal No.	 EAT/365/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 May 2000

Before
HIS HONOUR JUDGE H WILSON
MR P M SMITH
MR R N STRAKER

REAR ADMIRAL T J ENGLAND	APPELLANT

HAMPSHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR M GIBNEY
(of Counsel)
Instructed By:
Personnel Policy Unit
Hampshire County Council
The Castle
Winchester
SO23 8UJ	

	JUDGE H WILSON:	This has been the final hearing on full argument of the Appellant’s appeal against the decision of the Employment Appeal upholding a submission made on behalf of the Respondent that there was no case for them to answer.  The Appellant has appeared in person and the Respondent has been represented by Mr Gibney of Counsel.

1	The brief background facts are that the Appellant made an application complaining that he had been dismissed, without consultation, for refusing to attend a meeting when to do so would have breached Health and Safety Regulations and the Code of Practice.  

2	The Respondent entered an appearance based on the fact that the Applicant had less than two years’ service and that the dismissal was not because of health and safety but for failure to comply with a final warning.  There were various other matters in the appearance which are not relevant at this stage.

3	This has been the second appeal to the Employment Appeal Tribunal.  This has been because of what the President, Mr Justice Morison, described as unhappily protracted litigation, marred initially by what he described in his judgment on the first appeal as a “procedural mishap”.  What had happened was that a Chairman, sitting alone, on a preliminary point of jurisdiction raised by the Respondent concerning the length of employment issue, broadened out to embrace health and safety considerations and the provisions of section 100 of the Act.  Having done that the Chairman, sitting alone, decided that there was a clear health and safety issue, which played a major part in the actions of the Applicant.  He found that the dismissal was tainted with the health and safety issue and held that there was jurisdiction to hear the application and gave leave to amend the Notice of Appeal.

4	In the course of his judgment on the first appeal the President referred to the very difficult position each party was put in, by those conclusions of the Chairman sitting alone, when it came to the full hearing itself.  On the one hand the Respondent, very understandably, was concerned lest the full Tribunal would feel bound by what the Chairman on his own had said, even though it was a different Chairman.  On the other hand the Appellant, as a layman, might reasonably have expected that, thanks to what the Chairman sitting alone had had to say, it was all over bar the shouting and it was likely that, as a layman, he would not understand that the whole thing was at large once again.

5	We do not have a copy of the decision of the first Employment Tribunal, but it appears from what is said in the President’s judgment that that Tribunal found 100% blameworthiness, so far as the Appellant was concerned.  However that might be, the President said, despite recognising the unsatisfactoriness of the results of a procedural mishap, that justice could only be done by a further hearing.  That further hearing took place and, as we said at the outset of this judgment, the Employment Tribunal on that occasion upheld a submission of no case.  Subsequently the Chairman refused a review of that decision.

6	The Appellant appealed and at the preliminary hearing Mr Justice Charles said:

“Our preliminary view on an ex parte basis is that it is surprising, given the history of this case, that the Respondent Council made such a submission [of no case] and that it was accepted by the Employment Tribunal.  Again, on a preliminary basis that surprise is compounded by the reasons given by the Chairman for refusing a review, which seem to be based on what he took to be an admission in the evidence of the Applicant that he had not been designated for the purposes of section 100 of the Employment Rights Act.  It seems to us, again on an ex parte and preliminary basis, that that is not simply an issue of fact but is one of fact and law.

7	Today’s appeal therefore has been on the grounds permitted by the Tribunal presided over by Mr Justice Charles and it has been concerned with an examination of the Employment Tribunal’s decision to uphold the Respondent’s submission of no case.  They had heard the Appellant read his statement and, in particular, they had heard him read page 145 of that statement in which he says, dealing with the statement to Mr Dixon:

“… for me to have left the Harbour Office on that morning to attend his required meeting would have been in breach of the Harbour Office Health and Safety code of practice.  As background to this I will also address the general and specific activities I was designated by the County Council, as the River Hamble Harbour Master, to carry out in connection with preventing or reducing risks to health and safety at work - and I am sure you will not have missed the significance of the words I have just used in the context of Section 100 (1) (a) of the 1996 Act.”

As Mr Justice Charles said in his judgment on the preliminary hearing:

“Additionally, it is apparent that the Applicant, through the totality of his evidence was not accepting that he did not satisfy the section and that he had a number of arguments as to why he did so, as a matter of fact and law.  Further, as we understand it, those arguments went outside the terms of his own contract of employment in which he might have been designated for the purposes of the Employment Rights Act.”

8	Nevertheless, despite those matters, the Chairman and the Employment Tribunal appear to have focussed entirely on an exchange resulting from an answer, given at the end of Mr Gibney’s cross-examination, when the Chairman to verify what he thought he had heard, asked the Appellant, “Were you designated?” and recorded the Appellant’s answer “No”.  

9	It has to be remembered that questions put by Counsel, or anybody else for that matter, are not evidence.  Suggestions put by Counsel, or anybody else, to a witness are not evidence.  The answers given by the witness to questions or suggestions and those answers alone are the evidence.  Of course, if the questioner or the maker of the suggestions calls a witness then the suggestions or the questions may become evidence, but otherwise they are not.  Moreover, today the Appellant, in accepting that that exchange took place, has put it in the context in which it was made.  He points to that section of his statement at page 145, the statement he read to the Tribunal (to which I have already referred) and he points also to an answer given at the first hearing on 19 February 1997 by Mr Greenwood that he had delegated the Health and Safety Policy to the Harbour Master.  He pointed out to us that he had been precluded from introducing that in evidence before the Tribunal and also pointed out that because no evidence was called by the Respondent, he was unable to put the matter in cross-examination to the maker of the statement, Mr Greenwood himself, who was going to be called.

10	The Appellant’s case on designation is put on two grounds.  First of all the residual responsibility contained in his job description to supervise the Assistant Harbour Master in the implementation of Health and Safety measures which was in his job description, and secondly, the responsibility which devolved on him because of the death of the Assistant Harbour Master.  Both of those grounds, he says, have to be considered in the context of the wording of section 100 and the European Directive.

11	The Appellant goes on to point to the documentary evidence about the meeting, his refusal to attend, which triggered his dismissal and he referred us to page 134 of the bundle which was one of the e:mails exchanged between him and Mr Dixon over the fateful weekend.  He says that he notes that he is required to attend the meeting and he continues:

“I have to tell you that if I do so it will leave the Harbour Office/River Hamble with only one, junior member of Harbour Staff on duty.  This is contrary to the laid down procedures for operating the Harbour Office/River and will, in my professional opinion, be unwise and unsafe.”

He goes on to say:

“… it is my professional opinion that it would not only be contrary to laid down procedures but also unwise and unsafe - in terms both of Harbour staff and River safety - for me to leave only my most junior staff member on duty in the Harbour Office, in order to comply with the directive in your 31 May 1996 letter.”  

In parenthesis it is noted that the 31 May 1996 was a Friday.  The letter had been seen by the Appellant on the Sunday and it was impossible to make arrangements for cover.  This was an e:mail response on the Sunday.

12	The Appellant went on to suggest the following options to Mr Dixon, that they should agree an alternative date to meet in Winchester which would give him time to make suitable arrangements for staffing the Harbour office in his absence.  Secondly, that Mr Dixon should come to the Harbour office or thirdly, that Mr Dixon accepted in writing full responsibility for all aspects of the safety of the River Hamble and the member of staff on duty while the Appellant was absent from the Harbour Office to attend the meeting.

13	Those are the submissions made on behalf of the Appellant today concerning the matter at issue.  Mr Gibney in his submissions to us, said in his skeleton argument, paragraphs 9, 10 and 11, that:

“9.  The Evidence of the Appellant both in his statement in chief and in his answers to cross-examination demonstrably pointed to alleged Health and Safety concerns for River Mariners rather than for fellow members of staff … ”

And suggests that those matters would be outwith the provisions of section 100.  Of course, against that there is the quotation from the e:mail, which I have just made.  He went on, in paragraph 10 to accept that:

“10.  Whilst accepting that a submission of no case is unusual … the only salient evidence … were the Appellant’s own evidence and the documents that he introduced.”

14	That is inevitably the case where consideration is being given to a submission of no case.  Sketching in the background disagreement between the Appellant and the Respondent concerning the question of re-grading, almost seemed to be criticising an over-zealous new broom.  Whether that is the case or not perhaps does not matter.  Mr Gibney went on to submit that the meeting with Mr Dixon in fact was over the dispute between the parties about the Appellant’s perceived shortcomings so far as some of his duties were concerned, rather than the safety issues which had been raised by the Appellant earlier in the e:mail correspondence.  Whether or not that is the case could have been a matter of evidence.  It was not.  Maybe it was put to the Appellant in cross-examination.  We do not know, but if it was it would certainly have been denied and it would have been the denials which were the evidence.

15	Mr Gibney also submitted that the job description for the Harbour Master, the position occupied by the Appellant, contained no health and safety designation, although he agreed that it was in the job description of the Assistant Harbour Master.  He quoted the European Directive, Article 7, paragraphs 1 and 2, which place a mandatory duty, particularly on public authorities to administer local domestic jurisdiction in accordance with the directive and submitted that the word “designated” should be narrowly construed.  It was not a question of devolution or acceptance, although he conceded that the word had never been judicially considered.  In passing, it seemed to us that it behoves any employer to ensure that suitable arrangements are made to cover the absence, either through holiday, illness or unhappily, death, to cover any such lacuna in health and safety provision.  But that is not a matter for our decision.

16	We come to the conclusion, having considered everything that happened, that the Employment Tribunal in this case erred when it placed such emphasis on an apparent admission by the Appellant, especially in the context of the rest of his evidence.

17	We consider that the Employment Tribunal fell further into error in failing to consider the construction to be put on the word “designated” in the context of the statute and the European Directive.  In our view the only evidence before the Tribunal was that of the Appellant and that constituted a clear prima facie case.  It needed to be tested by evidence on behalf of the Respondent in order for a just solution to be reached in this dispute.  It therefore follows that, unhappily, the matter must be remitted for yet another hearing.

18	We are unable to accede to the remedies which the Appellant asks us to institute, in the event that we allow the appeal.  That would be to trespass on areas of fact, which are not for us.

19	We allow the appeal and remit the matter for a full hearing by an Employment Tribunal of all the evidence on both sides.  We shall refer the matter to the President of the Employment Tribunals with a view to his considering the transfer of the case to a different region, preferably one where it may receive priority.  In referring it to the President, we direct that a second copy of Mr Justice Morison’s judgment on the first appeal should be sent to him, that a copy of Mr Justice Charles’ judgment should be sent and finally, of course, this judgment.