Appeal No.EAT/0741/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MS G MILLS
MR J R RIVERS

MR M K DARKWA	APPELLANT

NCP/SUREWAY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

JUDGE PETER CLARK

1.	The Appellant, Mr Darkwa, was employed by the Respondent as a car park attendant from January 1998 until his resignation on 21 June 1999.

2.	Shortly before that resignation, on 2 June 1999, he presented a complaint to the Employment Tribunal of breach of contract and unlawful deductions from wages.  When the matter reached the Tribunal sitting at London North on 29 November 1999 and 2 February 2000, a complaint of unfair constructive dismissal had been added.

3.	That Employment Tribunal, in a decision with extended reasons dated 16 February 2000 dismissed all his complaints.  They found:

(1)	That the Respondent’s unilateral switch from weekly to monthly pay did not amount to a breach of contract, because the Appellant continued to work under the new arrangement and accepted a £50 allowance, paid by the Respondent, to buy out the former weekly wage arrangement.

(2)	That far from there being any deductions from his wages, he had in fact been overpaid between January and June 1999 in the sum of £238.17.  That claim was withdrawn by the Appellant.

(3)	That there had been no failure to provide him with a safe working environment, amounting to a fundamental breach of the contract of employment, in requiring him to work in freshly-painted kiosks.

(4)	Accordingly he was not constructively dismissed within the meaning of Section 95(1)(c) of Employment Rights Act 1996.

4.	Against that decision Mr Darkwa now appeals.  He takes essentially the following points:

(1)	The Tribunal failed to pay attention to the provisions of the Health & Safety at Work Act 1974.  

5.	That Act does not give rise to any civil liability.  It seems to us that the Tribunal did consider the relevant question and that is whether the Respondent was in fundamental breach of the employment contract by failing to provide a safe working environment.  They found on the facts that it was not.

6.	That was a permissible conclusion in our view.  It followed that the Appellant did not make out his case of constructive dismissal and hence unfair dismissal.

(2)	That they failed to consider whether the Respondent had subjected the Appellant to a detriment, contrary to Section 44 of the Employment Rights Act 1996.

That section deals with Health & Safety activities and consequent detrimental action, in an employment sense, taken by the employer against the employee and not the effects on the employee’s health.  It does not, in these circumstances, appear to us to have been relevant in this case, nor indeed raised before the Employment Tribunal.

	(3)	That the Respondent’s witnesses perjured themselves.

7.	It is for the Employment Tribunal to find the facts and assess the credibility of witnesses, not for us, our powers being limited to correcting errors of law and not fact.

	(4)	The Tribunal’s decision was perverse.

8.	We are unable to say, on the facts, as found, that the Appellant passes the high threshold of establishing perversity in the legal sense in this case.  In these circumstances, having considered the way in which the appeal is put by Mr Darkwa, we have concluded that it raises no arguable point of law and accordingly it must be dismissed at this stage.