Appeal No. EAT/1211/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MS B SWITZER
MR T C THOMAS CBE

MR P HELM	APPELLANT

C P FREIGHT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Ian Wilson
Solicitor
Appearing under the 
Employment Law Appeal 
Advice Scheme.  	

JUDGE J McMULLEN QC

1	This is case is about unfair dismissal, breach of contract and holiday pay.  It is an appeal by the Applicant in those proceedings against a Decision of the Employment Tribunal, Chairman Mr P C Holmes, sitting in Manchester on 14 March and 30 April 2001, promulgated with Extended Reasons at the Applicant’s request on 17 September 2001.  The Applicant was in person, the Respondent was represented by a Director.  Today the Applicant is represented by Mr Wilson, under the good aegis of the ELAAS scheme.  We are grateful to him for the submissions he has made on the Applicant’s behalf.  

2	At the Tribunal the Applicant claimed unfair dismissal, breach of contract, that is notice pay, holiday pay and unlawful deductions from pay; this last was withdrawn.  The issues before the Tribunal were whether the Applicant was dismissed for a health and safety reason, if not he could not claim unfair dismissal as he did not have enough service.  The second issue was whether he had qualifying service under the Working Time Regulations, that issue is not pursued.  

3	The Tribunal decided that the Applicant was dismissed for refusing to obey a reasonable instruction and not for a health and safety reason under the Employment Rights Act 1996, section 101(d) or (e).  It decided that he did not have sufficient service to qualify for notice pay nor for holiday pay under the Working Time Regulations.  The Applicant appealed against the unfair dismissal finding alone on the following grounds, set out in a Notice of Appeal, and a brief Skeleton Argument which he drafted, backed up by oral submissions made on his behalf by Mr Wilson today.  Essentially, in our judgment, the Applicant contested the findings of fact made by the Tribunal.  

4	The Applicant was employed by the Respondent as an HGV driver from 15 August to 29 September 2000 until the relationship ended by the Respondent’s dismissal of him.  As the Tribunal found, on 29 September, the Applicant had driven a vehicle from France, containing a shipment of bonded liquor for the Wine Society in Stevenage.  The Applicant had complained that fumes had entered his cab and refused to drive it any further.  He contended that this problem had been present since he left the outskirts of Paris.  

5	The issue, therefore, for the Tribunal was to decide what occurred on that day, so as to decide the issue of unfairness of dismissal, or otherwise.  The Tribunal directed itself in accordance with section 100 and found that section 100 was not in play here, and therefore did not need to consider reasonableness under section 98(4).  The Tribunal correctly directed itself in relation to section 100, which is on the following terms:
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason ……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”

It is not necessary for us to read any further since the Tribunal decided that section 100(e) was not relevant to the circumstances before it.  

6	The Tribunal decided that as a matter of law, there must exist a circumstance of danger.  It went on to examine whether there were circumstances in this case and found that there were not.  It was not satisfied that fumes, as the Applicant alleged, had entered his cab.  Further, the Tribunal held that the Applicant did not reasonably believe that there was a serious and imminent danger.  It took into account the fact that the Applicant had driven the vehicle from France and had made no attempt to contact the Respondent until he reached Ashford, Kent.   

7	The Tribunal also directed itself to whether there were circumstances which the Applicant could reasonably have believed he could avert, so as to avoid the danger which he alleged he was experiencing.  The Tribunal found against the Applicant on this matter, considering that since he was a reasonably experienced HGV driver, he could be expected to investigate the cause, and have taken such simple steps as it found would remedy the problem, such as stopping any hole with a rag or tape, to deal with the problem.  He could have driven shorter distances, but the Tribunal found he was not prepared to take any such steps.  

8	The Applicant submits that the Tribunal erred in law and disputed the findings which we have recounted above.  On his behalf, it is submitted that there was no technical evidence relating to the ingress of fumes.  The evidence, such as there was, before the Tribunal came from two other drivers who were despatched by the Respondent, and we take it by use of that verb that the Tribunal is indicating that it was done either on or about 29 September 2000.  Neither of those drivers experienced any difficulty.  The vehicle was subsequently checked out; no problems were found of fumes entering the cab.  That was evidence upon which the Tribunal could form its view, in our judgment.  The fact that there was no technical evidence is not a criticism of the Tribunal, had it been necessary, in the Applicant’s view, to call technical evidence, that would have been provided for.  

9	Secondly, it is submitted on the Applicant’s behalf that new evidence has occurred in the form of a letter from Beatrice Jones, writing from Bois-in-Ardres on 24 May 2000, indicating that she had a conversation with Mr Helm on 28 September indicating he had electrical problems, and that she herself spoke to the transport company and told them of the problems.  This material was not before the Tribunal.  We have not been told in what circumstances this material is now adduced, and why it was not possible to adduce it hitherto.  That, in any event, would be a matter for an application to a Tribunal to consider in its discretion, whether to review its Decision in the light of this material, applying the usual rule in Ladd -v-Marshall as to the admissibility of new evidence.  It is not a matter with which we are concerned.  There is no indication in the Tribunal’s reasons that the Applicant indicated any kind of discussion with this witness.  

10	It is further contended that the Tribunal erred in indicating that the Applicant could have averted the danger, in that there is no finding about the steps which ought to have been taken.  We reject that contention, noting that the Tribunal received evidence from the Respondent, as part of its case, that the Applicant could have taken steps to fix the problem temporarily.  The Tribunal thus had evidence upon which it could form the view that simple steps could have been taken.  

11	It is submitted that the standard required by section 100(1)(d) is a subjective standard.  We disagree; the use of the word “reasonably” in that subsection imports an objective standard, and the evidence upon which the Tribunal made its Decision has been tested against that express provision.  We have decided that it is not reasonably arguable that any point in this appeal can be taken forward as a matter of law to a full hearing, and we dismiss the appeal.  We are grateful for the submissions made by Mr Wilson on his behalf.