Appeal No. EAT/0235/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR B V FITZGERALD MBE
MR G H WRIGHT MBE

MR B DAVIES	APPELLANT

NORTHAMPTONSHIRE PROBATION SERVICE & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS P DUFFAY
Representative
Instructed by:
Employment Law Advice Centre
22 St Edmunds Road
Northampton
NN1 5EH	

MR JUSTICE LINDSAY (PRESIDENT)

1.	We have before us today an adjourned Preliminary Hearing of the appeal of Mr B J Davies in the matter Davies v Northamptonshire Probation Service.  This morning Mr Davies has been represented by Mrs Duffay.  The case was heard from approximately 11.13 am till about 12.55 pm and we have heard argument, of course, from Mrs Duffay.

2.	On 27 March 1999 Mr Davies lodged an IT1 for disability discrimination and/or treatment contrary to section 44 of the Employment Rights Act, Health and Safety and/or section 47 of that Act (which is as to Trade Union Employee Representation).

3.	There was more than one respondent.  The second and third were employees of the first, the first being Northamptonshire Probation Service.  It was an IT1 of some length, some 33 odd pages.  On 27 April 1999 the three Respondents answered as to Sections 44 and 47 of the Employment Rights Act; it was denied that the Applicant had been subjected to any detriment within the meaning of those sections.  On disability discrimination it was said that the Respondents did not admit the Applicant was disabled within the meaning of Section 1 of the Disability Discrimination Act.  In fact that fell away and it was later admitted that he was disabled.  It was in any event denied, however, that there had been discrimination and, again under heading of Disability Discrimination, it was denied that paid leave given to Mr Davies amounted to discrimination under Section 5 of the Act and so it was denied that he had suffered any detriment or was discriminated against contrary to the Act.

4.	In September 1999 there was a three-day hearing at the Employment Tribunal.  The particular dates are not in fact filled in on the front sheet of the decision but will come on to detail of how the case was conducted in a moment.

5.	On 16 February 2000 the decision was sent to the parties.  It was the decision of the Chairman, Mr D R Crome, sitting with Mr K Algar and Mr D M Walsh and the unanimous decision of the Tribunal was that the applications that Mr Davies had made were dismissed.

6.	Both sides had been represented at that hearing; Mrs P Conway, a Consultant, appeared for Mr Davies and Mr Oudkerk, Counsel, for the Respondents.  On 28 March there was a Notice of Appeal giving grounds, each ascribed a letter of the alphabetic order accompanied by some 50 paragraphs or summary and some 6¼ pages of affidavit.  On 16 November the Employment Appeal Tribunal directed that the Chairman should be asked for his notes of evidence and by 14 December the Notice of Appeal was amended and compressed to include only some 12 grounds in the amended Notice of Appeal.

7.	It would be wise, because one needs to keep some focus on the points of law than can arise in these sorts of cases, to look first at the statutory provisions.  Section 44 of the Employment Rights Act says at sub-section (1):

“An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that –

(a)	having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities;

(b)	 [and this is the more applicable one] being a representative of workers on matters of health and safety at work or member of a safety committee –

(i)	in accordance with arrangements established under or by virtue of any enactment, or

(ii)	by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,
[going on leaving out (ba), but it is all part of the same section as to be read as one very long sentence]
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,”

8.	And so one sees from that that there are quite a lot of components that an Applicant has to prove.  First of all a detriment, secondly, that it has been inflicted by the employer.  Thirdly, that it was inflicted by reason that the victim, being an acknowledged health and safety representative, had been performing functions as such.  Fourthly, that he had brought circumstances to the employer’s notice by reasonable means; fifthly, that they were circumstances connected with his work (notice his work); sixthly, which he reasonably believed, seventhly, were harmful or potentially harmful to health and safety.  And it is crucial that there has to be some link shown between (a) the employer’s infliction of the detriment and (b) the bringing to the employer’s notice of the circumstances; (a) has to be done on the ground of (b).

9.	Section 47 is couched in a somewhat similar way.  It is headed:

“Employee representatives
(1)	An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being –

(a)	an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relation (Consolidation) Act 1992 (redundancies) or Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment Regulations) 1981, or

(b)	a candidate in an election in which any person elected will, on being elected, be such an employee representative,

he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.”

So, again there is a table of necessary ingredients.  It is necessary for the claimant to prove a detriment firstly; secondly, inflicted by the employer; thirdly, inflicted on the ground that as an employee representative; fourthly, he had or proposed to perform any functions as such.  And again there has to be a causal link between (a) the employer’s infliction of the detriment and (b) the functioning actual proposed as a representative; (a) has to be done on the ground of (b).

10.	Turning to disability discrimination there was, as it turned out, despite that initial provision in the IT3, no dispute but that Mr Davies was disabled within Section 1.  In those circumstances, therefore, in order for there to be discrimination, Mr Davies had to bring himself within Section 5(1) or Section 5(2).

“5(1)	For the purposes of this part an employer discriminates against a disable person if –
	
	(a)	For a reason which relates to the disabled person’s disability he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply

5(2)	For the purposes of this part an employer also discriminates against a disabled person  –

(a)	If he fails to comply with the section 6 duties imposed upon him in relation to the disabled person and 

(b)	 He cannot show that his failure to comply with that duty is justified.”

11.	So, it had to be shown that Mr Davies was treated less favourably than a person without the disability - consider Clark v Nova Cold in the Court of Appeal; if he was then it would be for the employer to justify the difference.  As to the section 6 duty, the duty of an employer to make adjustment: 

“6(1)	Where -
(a)	Any arrangements made by or on behalf of an employer or 
(b)	Any physical feature of premises occupied by the employer place of a disabled person concerned at a substantial disadvantage and comparison of persons who are not disabled it is a duty of the employer to take such steps as it is reasonable in all the circumstances of the case for him to have to take in order to prevent the arrangements or features having that effect to subsection 1(a) applies only in relation to:

(a) Arrangements for determining to whom employment should be offered and

(b) Any term conditional or arrangements on which employment promotion or transferred training or any other benefit is offered or afforded.”

That gives us the statutory background to the kinds of case which Mr Davies was making.  

12.	There have been a number of complaints that for their examination require a view to be taken of just how the proceedings were conducted and so we need to say something about the procedural background to the case.  The first day of the hearing was 1 November 1999.  The Tribunal sat at about 10 am.  From about 10.06 am Mr Davies read his witness statement himself.  It had some 143 paragraphs but paragraphs 39-45, 47-49, 51-55 and 57-58 were excluded.  

13.	There was, as it would seem, some discussion as to whether they should be excluded in the sense that Mrs Duffay tells us that it was the Tribunal’s own motion, so to speak, that first gave rise to the question of whether they should be excluded or not but to judge from the Chairman’s notes both sides had an opportunity of addressing the Tribunal on whether they ought to be excluded and they were.  They seemed to be excluded on the grounds of relevance.

14.	Although the Chairman’s notes do not record it, there was presumably some short adjournment at lunch time on that first day and the hearing of the matter then continued with Mr Davies still reading his witness statement until 15.10 in the afternoon.  Then there was a ten minutes break.  There is no record of any ruling that Mrs Duffay’s predecessor on that day acting for Mr Davies was shut out from asking any supplementary oral questions to supplement the written evidence in chief given by Mr Davies or even that she had made a request in that behalf.  Then Mr Davies’s cross-examination began at about 15.20 in the afternoon.

15.	In the course of that Mr Davies said that the only detriment he claimed in disability terms under Section 4(2)(c) was his being put on what he called paid suspension.  He suffered in fact, no loss of pay by reason of that but he said that he had, in effect, been demoted from workshop manager to workshop supervisor, a point we shall return to.  Moreover he said that he had been so demoted by reason of his health and safety or representative work.  The cross-examination continued to about 16.35 on that first day.  On the second day, 2 September 1999 the Tribunal sat at 9.35.  The Chairman ruled that further cross-examination of Mr Davies was to take no more than an hour.  In fact it went on a little longer than an hour to, one would guess, something like 10.45.  There was then re-examination of Mr Davies.  There was no indication of it having been curtailed by the Employment Tribunal.

16.	At 11.10 after a very short break a witness for the Applicant, a Mr Curtis, began to read his witness statement as evidence in chief and there is no indication of a request on behalf of the person representing Mr Davies on the day to be able to ask supplementary oral questions at the end of his written evidence in chief nor any indication of a refusal of any such request and then at about 11.40 the cross-examination of Mr Curtis began and it continued until about 12.30 and there was no re-examination at all.  At 13.40 a third witness for the Applicant began, a Mr Lewis.  He began to read his evidence.  Again there is no indication of a request at the end of his written evidence for leave to ask supplementary oral evidence in chief nor of any refusal.  Then his cross-examination began and he was cross-examined until about 2.30.  There was no re-examination and the Applicant’s case then closed.  There was no re-examination and the Applicant’s case then closed.  The Respondent’s witnesses then began.

17.	The Tribunal sat till about 4.15.  The third day was 3 November.  It was a half-day sitting until about 12.55 and the matter was adjourned then until 8 November.  So one notices a gap between the third day and the next of some five days.  On day 4, the 8 November, the Respondents fairly early completed their evidence by about 11.45.  There was a twenty minute adjournment then the Respondents made their final address orally and Mr Davies’ representative handed in a written final submission some 13 pages and some 106 paragraphs long and it was then indicated that judgement would be reserved.  Later that very day, the 8 November the Tribunal wrote to the parties saying:

“Further to your hearing which ended today the chairman, Mr D R Crome, has asked me to write as follows:

“It is the unanimous decision of the Tribunal that the Applicant’s complaints of discrimination contrary to the provision of S.4 of the Disability Discrimination Act 1995 and S.44 and S.47 of the Employment Rights Act 1996 are comprehensively dismissed.

Extended reasons will be promulgated in due course, probably within six weeks.”

In fact there was a longer gap than that.  It was not until 16 February, as I mentioned earlier, that the decision was sent to the parties and, as we read earlier, all Mr Davies’ claims were dismissed. 

18.	In the course of the Tribunal’s decision there are very many references indicating that Mr Davies’ evidence or evidence from his side was not accepted or that the evidence of the Respondents’ side was preferred.  It also is sometimes said that Mr Davies’ reaction to events or his perception of them was without foundation or unreasonable.
19.	These points can be set out in summary and it is right that they should be because without them one fails to remember that the Tribunal is, of course, master of fact and on many many counts in point of fact the decision went against Mr Davies.  Thus, for example, in its paragraph 9.1 the Tribunal said there was no evidence that he was denied appraisal and the circumstances that he relied on in their view never happened.  In 9.2, they said that his recollection was mistaken.  In 9.3, the Tribunal was satisfied that the Respondents’ version was correct.  In 9.4, contrary to Mr Davies’ evidence, he was not a workshop manager but a workshop supervisor.  In 9.5, Mr Davies took as a deep insult something which, said the Tribunal, no reasonable person could have perceived to be such.  In Paragraph 9.6, Mr Davies’ evidence was rejected on the question of whether or not he had been threatened with an assault.  In 9.7, Mr Davies’ evidence was rejected and his response to the particular point then in play was described as hysterical.  In 9.8, his evidence as to a particular response of his was, in the Tribunal’s view, merely that he had been over sensitive.  In 9.9, his evidence as to a no smoking policy being imposed by diktat was rejected.  In 9.10, his evidence was rejected about some health and safety forms.  In 9.12, his evidence was rejected about undue monitoring.  In 9.13, it was rejected about preferential hours of work being denied to him.  In 9.14, he was said to have overreacted.  In 9.15 and 9.17 his evidence as to detrimental treatment was not accepted and in 9.18, he was wrong to view something as oppressive in the Tribunal’s view.  In 9.20 the Respondents’ side’s evidence, Mr Lambeth, was accepted as to the disposal of some timber.

20.	As to disabilities discrimination, the Tribunal said in their paragraph 10:

“Again we remind ourselves of the totality of the evidence we have heard and the very helpful and full submissions that have been made.  On the evidence and on our findings of fact, as we have sought to make clear, we find no evidence whatsoever that the applicant has been discriminated against on the grounds of his disability.  In his own cross-examination he conceded to Mr Oudkerk that the sole matter of complaint that he had in regard to disability was the failure to make reasonable adjustments.  Those adjustments, sought in his letter of November 1998, were fully agreed by Mr Lambert subject to Mr Ghumra’s consent and Mr Ghumra’s response was in our view entirely reasonable, that matters should not be put in place until a full medical report had been received which, in any event, seems to have been unnecessary on the admission of the applicant’s own general practitioner in March.  Certainly nothing could be done before March.  The suspension itself could be regarded as detrimental but, first of all, it was a decision which was taken in good faith and was not disciplinary but in response to the applicant’s own statement on his medical condition and its signs and symptoms.  Secondly the respondent went beyond the call of duty, the call of the contract, in maintaining the applicant on full pay when a strict interpretation of the events could have meant that he, having exhausted his full pay entitlement, should have been put on half pay.”

21.	As to health and safety and trade union representation the Tribunal said in their paragraph 11:

“Similarly we cannot see that in any sense the applicant has been treated less favourably or been subjected to any detriment by reason of the fact that he was either the Trade Union representative, or the elected representative on the Health and Safety Committee.  He has pursued those functions with energy and has been accommodated in the pursuit of those functions to, and beyond, the degree that any reasonable employer could be expected to offer.  We reject any suggestion that he has been denigrated or harassed or bullied by Mr Lambert or by anybody else in regard to these matters.  In so far as he has perceived himself to have been so treated, that is a matter of his own reaction to situations which less sensitive personalities would have found acceptable.”

22.	It cannot be over-emphasised that we can only deal with errors of law.  The Tribunal, within broad parameters, is the master of fact; they saw and heard the witnesses and, as we have indicated, time after time they do not accept the Applicant’s side of the evidence given but preferred that given by the Respondents.  We must therefore approach the amended Notice of Appeal looking for errors of law and remembering that Mr Davies’ case on fact ran into considerable difficulties.  The form of the Notice of Appeal is that lettered A-L.  They are separate paragraphs, each paragraph beginning with a summary in heavy type followed, in ordinary type, by matters said to be summed up in the heading.  That, at any rate, is how it seems to be.  We need to go through the Applicant’s amended Notice of Appeal.

23.	The first ground is that the Tribunal misunderstood, misinterpreted or misapplied the Employment Tribunal’s Constitution Regulations 1993 Schedule 1 by failing to clarify the issues before it and by adopting the wrong approach with regard to sensitive submissions and by the manner of communicating its decision.  It has to be said that the Tribunal here was faced with complaints of considerable prolixity in a very great bundle of documents.  In their paragraph 7 the Tribunal says:

“The applicant’s proof of evidence ran to some 16 pages, 143 numbered paragraphs, of closely typed text.  Clearly the applicant has attempted a very close and detailed analysis of the five years of his contract of employment and the experiences he has had with various members of his line management.  Leaving aside incidents which are so trivial and do not justify being considered as detrimental behaviour or less favourable treatment, we have identified 19 alleged circumstances on which we think the applicant might properly seek to rely in supporting his claims.”

And they then set them out.  In fact I think there are 22 separate sub paragraphs thereafter.  We have no reason to think that that is other than a conscientious and fair summary of the case then put forward by or on behalf of Mr Davies by Mrs Conway, the Consultant acting for him on that day.  It is not justified in our view to say that the Appellant was not permitted to present his documents.  There were very many references in the extended reasons to the documents and the written final submissions put in on the day also make very many references to the documents.  It is true that some passages in Mr Davies’ witness statement were excluded but they were excluded as irrelevant and that is not unusual.  An Employment Tribunal has often to do so to keep the evidence within the bounds of relevance and there was oral re examination available if necessary to make good any holes in Mr Davies’ evidence that remained unplugged by the time that his cross examination had finished.  There is no indication, as I mentioned earlier, that the re examination was curtailed, or in the cases where there was none, that it was ruled against, nor there can there be complaint about the decision being given on the very last day of the hearing.

24.	The Tribunal had a gap from day 3 on 3 November to day 4 the 8 November in which the underlying documents could have been looked at, as well, of course, as they could have been looked at on 1, 2 and 3 November.  By the morning of 8 November the oral evidence was all but complete.  There was, as it seems to us, no undue haste in the conduct of the case.  The only guillotine that was threatened was as to the cross-examination of Mr Davies on day 2 but that was in fact extended a little in any case.  We do not feel able to say there is any error of law within that first ground, ground (a).

25.	The second one (b) reads as follows:

“The Tribunal misunderstood or misapplied the Statutory Sick Pay (General) Regulations 1982, in defining a sick person and the terms under which sick pay applies; erred in creating its own medical evidence and adopted the wrong approach in substituting its own views for those of the Respondent.”

To understand this, one has to refer back to the decision.  In Autumn 1998 Mr Davies was off sick.  The extent of his illness took Mr Lambert, his line manager by surprise.  In paragraph 9.16 the Tribunal says:

“The applicant was off work sick for about three months in the Autumn of 1998, we have not seen the medical records or the attendance record but the applicant’s letter of 25 November makes the position clear.  That letter came as a complete surprise to Mr Lambert in the matters it disclosed, namely that the applicant not only was experiencing problems with his back and the pain generated because of it, but also from stress which needed counselling, high blood pressure and blindness and in addition that he had collapsed at work on one occasion.  The applicant sought for reasonable adjustments, as he saw it, to be made.  Mr Lambert discussed the matter with him and made it clear that subject to Mr Ghumra’s observations the reasonable adjustments would be made, in particular those involved reducing the applicant’s hours to 32 hours per week by abandoning work on Friday mornings and limited the number of clients, as they are called, whom he had to attend.  In addition revision had to be made to the extractor system in the workshop.”

26.	Reading on to 9.17:

“The applicant thought that all was well but Mr Ghumra on discussing the matter with Mr Lambert formed the view that the applicant’s statements that he was experiencing blindness and had collapsed and coupled with the fact that he was diagnosed as having high blood pressure, posed a risk to somebody who was in charge of persons the subject of the Community Order in the carpenters workshop.  What could happen if he collapsed whilst in the middle of tutoring somebody or, more particularly, and this was a very real risk, in the course of a confrontation with a recalcitrant client, and so Mr Ghumra decided that the applicant should be suspended and the applicant was told that of this in a letter of 7 December to which have made reference.  There was nothing in our view which was less favourable treatment to the applicant in this course of conduct.  Nothing that was addressed to him as a person with disabilities or as a Trade Union Representative in any sense.  It was a perfectly reasonable response of prudent employer wishing for a medical report to be obtained in order to make an assessment of the risks posed by the applicant to himself and to the workplace.  We accept Mr Lambert’s evidence that Mr Lambert did not use the word “suspend” in speaking to Mr Curtis of the applicant’s absence.  As a matter of fact the applicant was “suspended” in the sense that he was no longer required to come to work.  The applicant perceived  the “suspension” as being less favourable treatment, it certainly was not and was fully justified.”

A little later:

“The respondent was being over generous to the application as Mrs Roy  makes clear and as we have already mentioned, the applicant had used up his sickness entitlement to be absent on full pay but was nevertheless maintained on full pay.  The applicant raised a grievance in regard to these matters but it is quite clear that the grievance was given proper consideration and could not possibly be disposed of until the outcome of the medical report was obtained.”

27.	In their paragraph 10 at the foot of our page 46 they say:

“the respondent went beyond the call of duty, the call of the contract, in maintaining the applicant on full pay when a strict interpretation  of the events could have meant that he, having exhausted his full pay entitlement, should have been put on half pay.”

28.	We regard that analysis made by the Employment Tribunal as a sensible analysis, one which it was open to the Tribunal to come to on the facts that they have found and we do not see any error of law in that area.  We have no reason to believe the Chairman’s notes to be incomplete or inadequate and, indeed, even if they were to be, there is a technique for dealing with the case where that is a point intended to be relied upon.  The normal way is that the persons who attended on the day as advocates agree as best they can between themselves what was actually done and said and then, when an agreed version emerges, they send it off to the Tribunal concerned and its Chairman then rules as to whether the Chairman’s notes could be supplemented in that sort of way.  That has not been done here.  We see no error of law in that second ground, ground (b).  

29.	The third ground says:

“c.	The Tribunal’s decision is unsound in that it allows for abuse of SSP system, if not fraud:”
Mr Davies, it will be remembered, was maintained on full pay.  The point is completely hopeless so far as it seeks to allege an error of law on the Tribunal’s part.

30.	The fourth ground is:

“d.	The Tribunal misdirected itself or misunderstood the Appellant’s union status rendering its conclusions in respect of detriment in respect of trade union activities as unsound.”

Once, as we have seen, it was held that Mr Davies suffered no detriment by reason of his trade union activities or his health and safety roles, the detail of his particular duties no longer needed to be set out.  Once it was found that he had suffered no detriment he was bound to lose his trade union and health and safety parts of his case.  

31.	The fifth ground:

“e.	The Tribunal misunderstood or misapplied Council Directive 89/391/EEC Article 12 on the Training of workers or misdirected itself by confusing a First Aid Course, a requirement of the Appellant’s work, with a trade union conference, which was not the same event or requirement.”

The employer, so found the Tribunal, chose not to send Mr Davies on the course because Mr Davies was at the time a sick man.  

32.	In their 9.19 they say:

“It was not at all surprising that by document 416 the respondent refuses consent for the applicant to go on the Health and Safety course.  He was a sick employee (and I will mention that in a moment) and manifestly it would have been imprudent to let him go on a course; this could have could have posed a risk to himself and to the other people on the course.”

The original typed version of that said “he was quasi-employee” but there was notice of correction that changed it to “a sick employee” and we cannot look behind that notice of correction.  The nature of the course was almost immaterial as the reason for not sending Mr Davies on it was that he was sick.

33.	The sixth ground:

“f.	The Tribunal misunderstood or misapplied the law in respect of Health & Safety at Work Act 1974 that this also applies to offenders (persons who are not employees) when working.”

As we have noted already, once it was held that there had been no relevant detriment, the detail of Mr Davies’ particular Health and Safety obligations, those cast upon him as a representative, became unnecessary to go into any further.  The crucial thing was, was there a detriment. 

34.	The seventh ground:

“g.	The Tribunal misapplied the Council Directive 89/391/EEC and Control of Substances Hazardous to Health Regulations 1994 (COSHH) that risk assessments are a statutory requirement.”

The answer is again that it was quite unnecessary for the Tribunal to go into detail once it was clear in their minds that there was no detriment suffered.

35.	The eighth ground:

“h.	The Tribunal misapplied the law in respect of the Reporting of Injuries , Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) or misdirected itself, in respect of assessments and procedures required for the use of control measures, monitoring and reporting.”

Again the answer is the same.

36.	The ninth ground:

“i.	The Tribunal misdirected itself and misapplied TULCRA 1992 and the Council Directive 89/391/EEC, by finding it sufficient not to allow time off for trade union activities in the submission of proposals and HASAW 1973 with regard to the representative bearing costs.”

There is no finding by the Tribunal that an employer need never give time off for trade union activities or Health and Safety duties.  The Tribunal looked at the particular facts of this particular case and they were right to do so.

37.	The tenth ground:

“j.	The Tribunal erred in its interpretation of the Disability Discrimination Act 1995 in respect of reasonable adjustments, interaction with the employee and the Appellant’s contractual situation.”

That, it seems to us, is a hopeless and vague indictment.  As we have seen, Mr Lambert agreed certain adjustments, including reducing Mr Davies’ hours and the number of his clients and suggested also the alteration in the extractor system subject to Mr Ghumra’s views. But Mr Ghumra thought that a person in Mr Davies’s state of health, who might collapse, for example, was a danger and hence he was sent home on full pay to await proper medical report.  It is hard to find any error of law in the course of that.

38.	The eleventh ground:

“k.	The Tribunal took the wrong approach with regard to motive and failed to take into account treatment rather than motive which is set out in precedents by which it is bound.”

But motive was indeed important and the Tribunal was right to examine into it.  Both the Health and Safety and the trade union provisions say “on the ground that” as part of their legislative provisions and that requires one to look at why a party acted as it did.  We see no error of law in looking at motives.

39.	The twelve and last ground:

“l.	The Tribunal erred in ignoring precedents in respect of investigation.”

40.	We detect no error of law in the directions which the Tribunal gave itself on the law.  After looking at those separate issues in the Notice of Appeal (which we are bound to say Mrs Duffay did not work her way through) we find in those parts no arguable error of law but there are some other points that Mrs Duffay raised today.  She comments on a passage where the Tribunal comment on a grievance that Mr Davies had lodged in a passage already cited.  We have read out the passage in which the Tribunal said: “The applicant raised a grievance in regard to these matters but it is quite clear that the grievance was given proper consideration and could not possibly be disposed of until the outcome of the report was obtained.”

41.	On the applicant’s own evidence he received the consensual release of medical record application form in January but did not return to work until March.  There is no detriment to him in the Employer not dealing with the grievance until he returned to work.  The Tribunal quite failed to see what the grievance was about in any event but Mrs Duffay says that the Tribunal should have looked into the grievance to be sure what it was about.  However we think that is a misunderstanding of the import of their saying they did not see what the grievance was about.  The Tribunal was saying simply that it was a storm in a teacup.  It was something that was really so trivial it was hardly worth complaining about.
42.	Then Mrs Duffay has drawn our attention to an incident involving a friend, of Mr Davies a trade union member at a nearby Magistrates Court on a very hot day.  There is in fact no evidence of the relevant day being a hot day nor is the particular nature of the complaint to Mr Davies to be found in the decision of the Tribunal itself but that is what she tells us and the question is whether Mr Davies (as Health and Safety representative or trade union representative is not for immediate purposes relevant) should leave his place of work and have gone to that Magistrates Court to investigate further the enquiry or complaint that was made to him.  The Tribunal held that in the particular circumstances the employer had been quite right to require him to stay at work because the nature of the complaint was that it could be dealt with simply by the person complaining from the Magistrates Court making a report and submitting it.  Mrs Duffay says that this is entirely to misunderstand the nature of Health and Safety complaints and the seriousness with which they need to be attended to.  We have to bear in mind that the Tribunal had heard this case with a three person Tribunal with not only an experienced Chairman but two lay members carefully picked, one from each side of industry, and they can be expected to have some awareness of what is a trivial complaint that needs no immediate attention, and what is a serious complaint that did require immediate attention, so immediate that someone in Mr Davies’ position could be expected to leave his place of work immediately to attend to it.

43.	We are quite unable to describe the Tribunal’s reaction that there was no threat to life or limb, when it was something that could have been investigated at a later time, as being other than a decision open to them on the facts.  Mrs Duffay’s complaints too, of the fact, which we have more than once commented on, that there were a number of passages in the witness statement of Mr Davies that had been struck out and that no advanced notice was given of that and that it left an unfair hole in Mr Davies’ argument.  But, again, once one got to a position, which the Tribunal got to, that there had in fact been no detriment (still less, one inflicted by reason of Mr Davies having exercised his function either as a trade union representative or Health and Safety representative) the exact nature of Health and Safety risks that he said were being run or the exact nature of the assessment which he said should have been made but had not been made became irrelevant.  We do not feel able to describe the excision of the passages in the evidence as being in any way an error of law.  The Tribunal, it seems to us, were in effect advancing forward on the footing that there was something in the complaints that he was making but, even so, they found no detriment and that was enough to put an end to Mr Davies’ case.

44.	We have now, I think, dealt with all the major points either made in the amended Notice of Appeal or orally this morning.  We remind ourselves that this only a preliminary hearing, albeit an adjourned one and albeit taking far longer than most preliminaries are allowed to take. But, even reminding ourselves of that, we are able to find no arguable error of law in the Tribunal’s decision and accordingly we must dismiss the appeal even at this preliminary stage.