Appeal No. EATS/0033/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 29 January 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MISS J A GASKELL
MISS A MARTIN

 

STEPHEN DUNN	APPELLANT

 

 
OVALCODE LTD T/A UKR	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr Stephen Dunn
In Person
54 Den Walk
METHIL   KY8 3LH

 	
For the Respondents	Mr D B Cunningham, Solicitor
Of-
Messrs Hewitts
Solicitors
9 Church Street
SHILDON   DL4 1DS

 	

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the applicant, who represents himself, against a decision of the Employment Tribunal determining that the termination of his employment with the respondents was not related to circumstances underpinning section 100 of the Employment Rights Act 1996 (“The Act”).  Since the employee applicant only worked for a period of less than three weeks for the respondents, unless he can succeed under this section of the Act, he has no claim for unfair dismissal, by the reason of lack of qualifying service.  The issue of therefore whether or not the dismissal was reasonable and fair does not concern this Tribunal nor did it concern the Tribunal below although we will make certain comments in this respect.
 
2.	The background to the matter is that during a short time that the appellant was employed with the respondents as a scaffolder, he raised numerous safety issues with his immediate employer represented by a Mr Creighton.  Relations were plainly unharmonious but the circumstances surrounding his dismissal are set out by the Tribunal as follows, together with their conclusions:-
 
The first question for the tribunal was - what was the true reason for the dismissal? This question was unusually complicated in this case. Mr Creighton accepted that he had already determined to dismiss the applicant for capability reasons, and had intended to dismiss him with notice. His evidence was that the actions of the applicant were such that he felt he was justified in dismissing the applicant summarily, after the confrontation. If we believe Mr Creighton (as we did , on this issue), there are two ways of looking at these events. Either the original dismissal intention was accelerated, or brought forward, by the events, and the altercation was merely a factor in the timing, or the actual dismissal was capable of being viewed entirely on its own, with the earlier history being incidental to the dismissal itself.
 
The tribunal considered this matter in some detail and at some length. The applicant was denying that there was any such dismissal as spoken to by Mr Creighton and that he was lying. There was no common ground between these two stories; we could only believe one or the other. We came to the conclusion that there had to be an incident along the lines as spoken to by Mr Creighton. There is no doubt that something happened; otherwise the applicant would merely have been dismissed with notice on the basis of capability. We came to the conclusion that there was such an altercation but that it was much more significant to Mr Creighton than it was to the applicant. As we have indicated, the applicant was under emotional stress at this time and he probably gave no thought to his manner or demeanour in dealing with Mr Creighton. On the other hand, Mr Creighton was aware of the problems been caused by the applicant (as he saw it) and for the applicant to treat him, his employer, in such an offhand and dismissive way was unacceptable. Mr Creighton felt he was entitled to require the applicant to indicate whether he had been; when he got no response, and the applicant maintained his unco-operative and uncommunicative manner, Mr Creighton became angry and summarily dismissed the applicant.
 
Summary dismissal is different in nature to dismissal with notice. In terms of the Employment Rights Act, it is often unfair because it is precipitate.  In this case, it probably was precipitate, and if the applicant did have qualifying service, a tribunal might very well have found that the dismissal was unfair. However, when the applicant only has 10 days service, the fairness or reasonableness of the dismissal is not an issue for us. The dismissal can only be unfair if it falls into one of the prohibited categories. 
 
At the close of the evidence in this case, the chairman took the applicant through the terms of section 100 of the Employment Rights Act 1996. The applicant agreed that section 100(1)(c) fitted his circumstances exactly. The section reads:
 
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 representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practical for the employee to raise the matter by those means, he brought to his employers attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.    
 
We heard of the existence of a safety committee, but we were not convinced that this was truly a representative committee, and there was no evidence as to how the applicant was supposed to access the committee, or through whom. The committee met monthly, and we were not told when the next relevant meeting would be. In the time frame, we considered that it was not reasonably practicable for the applicant to raise the matter through those means. Whatever the status of the committee, it would have required at least the co-operation of Mr Creighton, which was unlikely to have been forthcoming, on the evidence.
 
The applicant had brought the deficiencies as he saw them to the employer's attention, through Mr Browning and Mr Creighton. He believed that the circumstances were harmful. Was that belief reasonable?
 
The photographs disclosed a state of affairs as at one moment in time; that was the date of the dismissal. They did disclose a number of significant deficiencies in the scaffolding arrangements. Mr Graham agreed that at least some of these deficiencies would require to be addressed. We also took account of the fact that the applicant did have many years experience as a scaffolder; the evidence was that Mr Creighton’s experience was more general in nature. It is not the case that there was no foundation for the applicant's beliefs the question for us was- was this belief that the circumstances were “harmful or potentially harmful to health and safety" reasonable?
 
We came to the view that it was. There may have been room for differing opinions, and the state of mind of the applicant at that time may also have been a contributing factor. However, there were problems to be addressed. These problems had been raised by the applicant with Mr Browning, Mr Creighton, and other members of the workforce. Rather than addressing the issues by talking it through with the applicant, or taking the matters to the safety committee, Mr Creighton’s approach was going to be to dismiss the applicant with a week's notice.
 
Had that been the eventual outcome, we would have concluded, on the evidence, that the dismissal was unfair in terms of section 100.
 
We now return to the main issue. What was the principal reason for the dismissal? We concluded that the applicant’s behaviour was the primary reason. Even if health and safety issues had not arisen, dismissal would have been a likely outcome of the altercation.  It is stretching things too far for us to speculate that Mr Creighton had realised that his proposed dismissal would be likely to cause him problems, and that the actual dismissal was a pure invention to get him off the hook. If Mr Creighton had realised that there were health and safety implications in the dismissal, it would still have been open to him not to carry it out. We therefore came to the conclusion that the dismissal, bad tempered and precipitate as it may have been, arose from the circumstances of the altercation, with the previous history forming a only a small part of the decision.
 
We have unanimously come to the view that Section 100 of the Employment Rights Act 1996 does not apply to the dismissal, and accordingly, since the applicant does not have qualifying service, the tribunal does not have jurisdiction to entertain this claim. The application is accordingly dismissed. The circumstances disclosed by the evidence did concern us, and we hope that some lessons will have been learned.” 
 
3.	We rehearse this at length because it is important to focus on what the proper issue that is to be determined by this Tribunal and, in particular, to isolate what this Tribunal is not concerned with.  In particular, it is not concerned with general issues of safety on the site, nor with the safety performance of the employer, beyond determining whether any beliefs that the appellant held with regard to issues on the safety of the site were reasonably based.  The Tribunal addressed this matter and reached a conclusion in the passage we have quoted.  In particular, they concluded that had dismissal been related directly to the issues of safety focussed by section 100, they would have supported that position.
 
4.	Mr Dunn’s principal complaints to us, apart from what was said to be bias on the part of the Tribunal Chairman, a point to which we shall return, was that the Tribunal acted perversely in accepting the evidence of Mr Creighton against that of the appellant and his own witnesses which he maintained had been effectively ignored.  He maintained that Mr Creighton should not have been accepted as an uncorroborated witness and that looked at properly his dismissal was inextricably bound up with his complaints about safety.  He criticised the Tribunal’s decision more or less line by line not least on the issue of credibility, but also, for example, by reference to what he maintained was a misrepresentation of illness that the appellant has had both before and after his dismissal.
 
5.	It is well recognised that this Tribunal cannot interfere with questions of fact or evidence save against a background of perversity.  Time and time again before us, Mr Dunn challenged the conclusion of the Tribunal essentially by asserting they were wrong or that the opposite was true.  This he merely did by assertion, using at one stage, such words as “rubbish”.  It is understandable for a layman not to understand the limited jurisdiction of this Tribunal on evidential matters.  We are bound by the findings of the Tribunal when it comes to the issues of credibility and any conclusions bases upon their conclusion in that respect.  Thus, when the Tribunal have accepted Mr Creighton’s evidence with regard to the reason for dismissal, we must accept that position also and cannot go behind it.  What essentially Mr Dunn was trying to do before us, understandably for a layman, was to reargue the issue of credibility.
 
6.	It is therefore perfectly apparent to us this Tribunal have addressed the issues of fact correctly before them and, indeed, have determined the issue raised around section 100 in favour of the applicant.  However, they go on to hold that there was no factual connection between those set of circumstances and his dismissal which was related to capability or at least an unexplained absence from site consequent upon an altercation between himself and Mr Creighton.
 
7.	Since that is the sole issue that the Tribunal have to determine and it has done so, we are not in a position to interfere, although we are entirely satisfied that if the appellant had had a qualifying service the way he was treated in the circumstances surrounding his dismissal quite apart from any issue of section 100, on the fact of it was manifestly unfair and unreasonable.   However, he is denied a remedy in that respect because he did not have qualifying service.
 
8.	It is plain that the Tribunal had difficulty as indeed did we in constraining or confining the appellant to the proper issues to be addressed before the Employment and this Tribunal and not to embark on an overall or comprehensive review or survey of safety issues on the particular site.  Towards the end of his submissions, the appellant sought to return to various documents which were related entirely to that issue.  We declined so to do by reason of the fact that we have already stated the Tribunal found in his favour in this respect and no further examination of it is therefore necessary at this level.  We repeat, that where the appeal fails is because the Tribunal did not, on the evidence, connect those matters to the dismissal and that was a conclusion they were entitled to reach upon the evidence given their findings of credibility in relation to Mr Creighton, however angry the appellant may be at that conclusion.  That is understandable but does not bear upon the issue before us.
 
9.	Finally, we must deal with the fact that both his own assertions and the presentation of two affidavits, the appellant maintained that the Chairman was biased towards him and did not give him a fair hearing.  In this respect, as is our practice, the allegation was put to the Chairman, who responded to this Tribunal by letter through the Employment Tribunals Scotland office, the relevant part of which is as follows:-
 
“From the outset of the hearing in this case, the chairman had some difficulty with the applicant.  The applicant had come thoroughly prepared to demonstrate that the respondents were operating in an unsafe manner at the place where he had been employed as a scaffolder.  The applicant was clearly seeking a public platform for his views.
 
The tribunal took the view early on that this was not the main issue for determination by us and that, except as background material, detailed technical evidence of the nature of these unsafe practices was not necessary for our deliberations.  If the applicant had been allowed to proceed with this material, the case would not have been concluded within the timescale set aside for the purpose.
 
The applicant was either unwilling or unable to accept this, and throughout the hearing he attempted to return to his prepared theme.  He became frustrated when not permitted to do so.  In the event, I believe that in our decision, the tribunal indicated that we shared many of the applicant’s concerns in regard to the scaffolding.
 
At the stage of submissions, it immediately became clear that the applicant was once again going to rehearse in detail the respondent’s health and safety failings.  The primary question for us on the other hand related to the reason for the dismissal.  Bearing in mind the overriding objective (Rule 10) the chairman cut short this material, and summarised the legal issues which we had to consider, from the respondents point of view.  Having explained the position to him, the applicant seemed to accept the matter at that point, and the proceedings concluded.
 
I have nothing further to add.”
 
10.	This, to our mind, entirely explains what happened at the Tribunal and negatives any question of bias.  It is plain to us the Chairman is trying to regulate a set of difficult circumstances and there is no objective justification for the conclusion that the appellant was treated unfairly whatever he may personally think.
 
11.	In these circumstances this appeal will be dismissed.