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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Construction v. Nisbet [2001] UKEAT 948_00_1501 (15 January 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/948_00_1501.html Cite as: [2001] UKEAT 948_00_1501, [2001] UKEAT 948__1501

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APPEARANCES

 

For the Appellants	MR AKHLAQ CHOUDHURY (of Counsel) Instructed by: Messrs McGrigor Donald Solicitors Erskine House 68-73 Queen Street Edinburgh EH2 4NF


 


JUDGE COLLINS CBE

1. This is the preliminary hearing of an appeal from the decision of an Employment Tribunal sitting at Thornaby on Tees whose extended reasons were promulgated on 28 June 2000. The Tribunal decided that the Respondent had been unfairly dismissed insofar as he had been unfairly selected for redundancy on 10 September 1999 and awarded him compensation totalling £9,110.
2. The Respondent had been employed since September 1994 and according to the Tribunal, the reasons which led to his dismissal related to a health concern about certain ceramic filings. What happened was that the Respondent spoke to the local manager, Mr Watson, for information about those ceramic filings in the summer of 1999 at about the time at which Mr Watson had been put under the obligation of selecting employees for redundancy.
3. Mr Watson referred the Respondent to Mr Bulloch, who was the employer's safety representative and was based in Wales. Subsequently, the Respondent outlined his concerns to Mr Bulloch who gave certain instructions about overalls; Mr Bulloch was not called to give evidence and the Tribunal accepted the Respondent's evidence that Mr Bulloch did not show him the factsheet relating to safety precautions for the use of ceramic filings. The Respondent then approached Mr Lofts, who was a safety representative with British Steel who again, did not give the Respondent a copy of the factsheet. The Tribunal conclude in paragraphs 2(v) of their reasons:

"The Tribunal were unanimous in their finding that the move"

that is the Respondent's move from one site to another

"and the applicant's subsequent"

and the word "dismissal" appears to have been left out by a typing error

"were related to the various approaches made by the applicant to Mr Watson, Mr Bulloch and Mr Lofts."

4. Now it would seem, at first sight, that those findings of fact bring the case clearly within section 100 of the Employment Rights Act 1996 Subsection 1 provides:

"(1) 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, or

(ii) there was such a representative or safety committee, but it was not reasonably practicable for the employee to raise the matter by those means.

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 or safety."

And the reference to a "representative or safety committee" is a reference back to section 100(1)(b) which refers to a:

"representative of workers on matters of health and safety at work or member or a safety committee."

5. For reasons which are not clear, the Tribunal does not appear to have concentrated its attention on section 100. Instead, they looked at section 104 which deals with the situation where an employee who is dismissed for alleging that the employer had infringed a statutory right. They also looked at section 44 which gives the employee a statutory right not to be subjected to any detriment by the employer for bringing:

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

6. In the Notice of Appeal and in the Skeleton Argument prepared by Mr Sheldon, from whom Mr Choudhury has taken over the case at short notice, points are taken about the interrelationship of section 104 and section 44 where it is said that the Employment Tribunal fell into error. It may well be that there is some substance in those criticisms of the Tribunal's legal reasoning.
7. However, if it were the case, that on the Tribunal's findings of fact there would have been no alternative, had they considered section 100 of the Act, to exactly the same conclusion, then it seems to us it is not necessary for us to make any definitive observations about the Tribunal's reasoning under section 104 and section 44. Therefore we look more closely at section 100.
8. The matters on which we had been addressed by Mr Choudhury essentially deal with the precondition for a claim under section 100 succeeding; that there should have been no representative or safety committee, within the meaning of the Act, or if there was such a representative or safety committee, it was not reasonably practicable for the employee to raise the matter by those means.
9. There is no finding of the Tribunal that there was no such representative or safety committee, and it has to be said that the absence of a finding is not raised in the Notice of Appeal or the Skeleton Argument. The reason why it is not raised appears to be that whoever drafted those documents misread the Act, and for this purpose the wording is the same in section 100 as it is in section 44. Whoever drafted the Notice of Appeal seems to have thought that the expression "representative" in section 100 (1) (c) and in section 44 meant an employer's representative, and it was said that Mr Bulloch, the gentleman who did not give evidence, was such a representative. However, as I have indicated from the citation which I have made from section 100, it is clear that the representative being alluded to in section 100 (1)(c) is a representative of workers.
10. Now Mr Choudhury submits that, in those circumstances, it will be necessary to remit the case to the Tribunal for findings of fact as to whether or not there was a workers' representative, even though the point has not been raised in the Notice of Appeal, and therefore, it is necessary to turn to the findings of fact by the Tribunal to see whether any clue can be gleaned as to the factual case of the Appellants. In paragraph 2(iv) they say this:

"They accepted that having made his initial inquiry"

that is the Tribunal having accepted that:

"to Mr Watson he was told that he should address the inquiry to Mr Bulloch the respondents safety representative who was based in Wales."

11. It seems plain to us that if the Appellants were alleging that there was a workers' safety representative or safety committee, the Respondent would have been told to address the inquiry to that representative or committee, or via that representative or committee, and similarly, the history of fact outlined by the Tribunal shows the Appellants shifting the Respondent's concerns from one representative of the Appellants to another without any suggestion whatsoever that there was a workers' health and safety representative or safety committee through which his concerns should be channelled.
12. Accordingly, in all the circumstances, the findings of fact by the Tribunal, the way in which the case is set out in the Originating Application in the Notice of Appearance, and the Notice of Appeal, it seems to us that there is no factual basis on which we could correctly remit the case to the Tribunal for a further hearing.
13. The case before the Tribunal appears to have been conducted on the basis that there was no issue that there was a representative or safety committee for the purposes of the Act, and in the light of that, it seems to us that this is a plain case which should have succeeded under section 100(1)(c) of the Act: automatic dismissal for bringing to the employer's attention by reasonable means circumstances connected with his work which the Respondent reasonably believed were harmful or potentially harmful to health or safety.
14. That is the clear conclusion which appears to us to emerge from the Tribunal's findings of fact and the way the case was conducted, and in those circumstances it does not seem to us necessary to consider the impact of section 104 and section 44. For those reasons the appeal will be dismissed.