Appeal No.	EAT/1187/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR P R A JACQUES CBE
MR B M WARMAN

MR D C EVANS 	APPELLANT

BANKERS TRUST INTERNATIONAL PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MRS A EVANS
(Representative)	

	JUDGE C SMITH QC:	This is an application for leave to proceed to a full hearing of an appeal by the employee before the Employment Tribunal, Mr D C Evans, against a decision of an Employment Tribunal held at Norwich over three days in May 1998 of which extended reasons were sent to the parties on 17th July 1998 whereby the Employment Tribunal held that the appellant had not been unfairly dismissed and had not been subject to a detriment in contravention of s. 44 of the Employment Rights Act 1996. 

	It is important that we must record at the outset that the appellant was represented by Counsel and solicitors before the Employment Tribunal and that such legal representatives had settled the detailed grounds of his application in a seven page document from which it was clear that the appellant was complaining of unfair dismissal and being subjected to a detriment in breach of s. 44 of the 1996 Act. In particular, there was no complaint based upon the Disability Discrimination Act 1995, the employment provisions of which had come into force on 2nd December 1996. It is important to mention that the Employment Tribunal could only be expected to deal with the particular complaints which were in front of them.

	We have had the benefit today of having a helpful argument presented to us by Mrs Evans on behalf of her husband. We have considered very carefully everything that she had to say and all the documents that she has very carefully put together in front of us, particularly the substantial bundle numbering in all about 166 pages. We have considered those documents and the oral argument she has addressed to us. 

	We have reminded ourselves that Mr Evans only has to show an arguable ground to be allowed to proceed to a full hearing. We should say that we are of the view that on the face of the decision the Employment Tribunal dealt with the difficult matter before them in a careful way. They first summarised the issues in paragraphs 2 and 3 of their decision, namely firstly whether the appellant had been fairly dismissed on the grounds of redundancy as the respondent/employers maintained, the employers being Bankers Trust International PLC; or whether the true reason for dismissal was an unfair dismissal on the grounds of long-term sickness and illness and absence from work, as the appellant contended before the tribunal; and secondly, the Employment Tribunal went on to consider the issue under s. 44 of the 1996 Act. They summarised all that in paragraphs 2 and 3. They then recorded all the evidence that they had heard, all the documentary and all the oral evidence; and included amongst that was a medical report commissioned by the respondents dated 14th April 1997. 

	The tribunal then went on to make very detailed findings of fact between paragraphs 4 and 15 of their decision which are self-explanatory. Putting the matter very shortly, those findings demonstrate that concurrently with one another two things were happening: first, as appears from paragraphs 4, 5 6, 14 and 15 of the decision, there was the requirement for manual employees to continue to work in the Bank’s vault being superseded by a new computer system called Crest, thus leading to the redundancy situation affecting the appellant as described by the Employment Tribunal in paragraph 15. At the same time, as appears from paragraphs 6-13 inclusive of the decision, by 18th November 1996 the appellant had signed off work on stress related grounds and never returned to work until the date of dismissal 30th April 1997. Whilst off sick the appellant, as he was quite entitled to do, had mounted a lengthy grievance procedure complaining that he had been discriminated against due to his religious beliefs principally if not exclusively by fellow employees who worked with him in the vault of the Bank. The Employment Tribunal found that by their letter dated 21st January 1997 the respondents, having investigated the grievances, found no evidence to support them. The tribunal expressed themselves in paragraphs 12 and 13 of their decision as to how the matter then proceeded noting that there was a further meeting arranged but that the appellant, according to the findings of the tribunal, was too ill to attend any further meeting, and the Employment Tribunal found that the appellant was unable to advance his grievance despite the respondents’ request on numerous occasions to discuss the matter and arranging for the appellant to be medically examined by the Company doctor.

	The Employment Tribunal then summarised in detail the very full submissions which were made to them by Counsel on each side, as can be seen between paragraphs 17 and 24 of the decision. They then addressed themselves to the issues and expressed their conclusions in paragraphs 25 to 34 of the decision. They were satisfied that there was a genuine redundancy situation in the vault resulting from the dematerialisation of share certificates through the implementation of Crest. Thus they held that there was potentially a fair reason for dismissal of the appellant, namely redundancy. The tribunal then considered the various factors which were relevant to a decision as to whether redundancy was a fair redundancy. Had proper warning been given? Was there proper consultation? Was the reason for the dismissal fair within the meaning of s. 98(4) of the 1996 Act? In our judgment it is clear from the reasoning of the tribunal, particularly paragraphs 32 to 43, that the Employment Tribunal considered carefully whether the respondents had failed adequately to investigate the appellant’s complaint that he had been the subject matter of discrimination or victimisation. It is also clear that the tribunal considered the question of the stress suffered by the appellant due to his having to work with Mr Watkins. The Employment Tribunal considered all these matters and found:

(a)	that they were all fully investigated by the respondents; and
(b)	that they had no bearing upon the decision to dismiss.

The tribunal then went on to consider and reject the claim under s. 44 of the 1996 Act.

	It is against that summary of the decision that we consider the argument presented to us by Mrs Evans, not only orally but in the documents. 

	We explained to Mr and Mrs Evans that we cannot go behind findings of fact made by the Employment Tribunal unless they are perverse; nor have we jurisdiction to allow an appeal by way of a rehearing. Our jurisdiction is limited to seeing whether there are any arguable errors of law.

	We consider a number of the points particularly that have been mentioned to us this morning and are in the papers. In our judgment there was nothing inconsistent in the respondents making sure the appellant applied for any entitlements he might have under the Bank’s sickness and disability insurance, and at the same time concluding that he had become redundant so that he could properly be dismissed for redundancy. In our judgment, those are not mutually inconsistent positions and the Employment Tribunal dealt with them properly.

	There was also a strong argument being put to us today that the Employment Tribunal made perverse findings relating  to any offer of  alternative employment on the evidence before them. In our judgment the Employment Tribunal were clearly entitled to reach the conclusions they did with regard to the offers of alternative employment and the appellant’s reaction to such offers at the time, no doubt due to his illness. We note that there was no suggestion in Counsel’s arguments on his behalf that he had in some way requested details of alternative jobs and not been provided with them. We further note that it was argued by Counsel for the respondents at paragraph 22 that the appellant had in fact offered no solutions and taken really no interest in any offers of alternative employment. 

	In our judgment the Employment Tribunal having regard to the issues in front of them sufficiently took into account the fact of the appellant’s illness when considering whether he had fairly been made redundant and there is no arguable ground of appeal arising from the fact that they did not expressly go into detail about the matter of the long-term sickness of the appellant any more than was necessary to decide the issues which were in front of them. 

	Much that is in the Notice of Appeal is to the effect that the Employment Tribunal erred in law in some way in its approach to the appellant’s unfortunate stress related illness. We have taken very careful consideration of that, but it is clear, we consider, that the Employment Tribunal did take this into account sufficiently having regard to the limited issues that they had before them. There was no claim under the Disability Discrimination Act 1995 before them, and no argument was addressed to them in relation to any such claim. There was no reason, in our judgment, where both sides were represented by Counsel and solicitors, for the Tribunal to have considered such a claim. We have borne in mind that there are recent authorities which suggest that Employment Tribunals should look carefully to see whether there may be a claim under the Disability Discrimination Act 1995, but in this case, we repeat, both sides were represented by Counsel and the Act had only been in force for a few months. We cannot criticise the Employment Tribunal in any way for failing themselves to raise any possible issue under the 1995 Act.

	On the unfair dismissal claim the only issue was whether the reason for dismissal was for redundancy or lack of capability due to long term sickness and whether the respondents had acted fairly if they could establish redundancy. These issues were, in our judgment, properly considered by the Employment Tribunal. 

	With regard to the criticism that the Employment Tribunal did not deal sufficiently with the way in which the respondents had investigated the appellant’s grievances, in our judgment this was a matter for the Employment Tribunal to decide and cannot now be reopened. Thus we cannot see any arguable ground of appeal in relation to the Employment Tribunal’s approach and conclusions relating to the unfair dismissal issue before them.

	With regard to the claim under s. 44 of the 1996 Act, there were, in our judgment, grave legal difficulties in the way of this claim. The first point is that the s. 44, in our judgment, is not concerned with such matters as allegations of discrimination on religious grounds by one employee against another. Such are not health and safety matters falling within the relevant Council Directive namely 89/391/EEC Article 1 and Article 6. Health and safety matters which are the subject matter of s. 44 relate to such matters as dangers at work arising from the physical environment, the design of the working premises, the occupational risks arising from the working environment, accidents at work, workplace design, all those kind of matters. S. 44, in our judgment, is not apt to deal with the kind of complaints that the appellant was raising in this case. Apart from those fundamental jurisdictional difficulties with s. 44, the Employment Tribunal properly found as a fact that there was in place a safety committee to which it was reasonably practicable for the appellant to raise such matters if they were matters suitable to be raised before such a committee. So this finding, in any event, was fatal to the appellant’s claim under s. 44.

	Accordingly, in this unfortunate case, for those reasons, we regret we have to find, despite the arguments of Mrs Evans, that there is no arguable ground of appeal against the Employment Tribunal’s decision and the application will have to be dismissed.