Appeal No. UKEATS/0053/11/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At
the Tribunal
On
9 May 2012
Before
THE HONOURABLE LADY SMITH
MR M R SIBBALD
MR P M HUNTER
MR
GEORGE SLEVIN APPELLANT
PREMIER
FOODS GROUP LTD T.A HOVIS RESPONDENT
JUDGMENT
THE
HONOURABLE LADY SMITH
Introduction
1.
This is an employee’s appeal from a judgment of an Employment Tribunal
sitting at Glasgow, Employment Judge Shona MacLean sitting with members,
registered on 6 September 2011, dismissing the Claimant’s claim that his
dismissal for gross misconduct was unfair.
2.
We will, for convenience, continue to refer to parties as Claimant and
Respondents.
3.
The Claimant was represented by Mr M Cameron, solicitor, before the
Tribunal and before us. The Respondents were represented by Ms J Dalzell,
solicitor, before the Tribunal and by Mr M Foster, solicitor, before us.
Background
4.
The Claimant was employed by the respondents as an HGV driver. His job
title was “distribution operative”. When he started working for the Respondents,
in 2002, he was issued with terms and conditions which included the
following:
“Health and Safety
Whilst at work you must take reasonable care for the health and
safety of both yourself and others who may be affected by your actions. You
must comply with the health and safety rules and procedures relating to the
company in general and your own job in particular. Further details are given
in the Health and Safety Handbook and the site arrangements.”
5.
On or about 16 October 2007, the Claimant was specifically advised
in writing of health and safety responsibilities which included not interfering
with or misusing anything provided to protect his health, safety or welfare,
which was required by legislation, and using any machinery, equipment or safety
device in accordance with training or instruction. Any failure to follow the
rules would constitute gross misconduct.
6.
The Claimant also signed a “Personal Safety Standard” which was a list
of undertakings by him and included:
“I will work safely
…
I will not use operational short cuts which compromise safety …”.
7.
Further, on 16 October 2007, he signed a document headed:
“BRITISH BAKERIES LTD – MOSSEND RDC
INDIVIDUAL HEALTH AND SAFETY RESPONSIBILITIES”
and included:
“Responsible for:
…
7. Not interfering with or misusing anything provided to
protect their health safety or welfare, which is required by legislation, and
using any machinery equipment, or safety device in accordance with any training
and instruction.
I have read and understood the above procedures. I understand
that failure to follow these rules constitutes serious misconduct and will be
considered as a disciplinary matter.”
8.
Prior to late 2008, there was a pin on the fuel pump nozzles used
by employees including the Claimant which could be put in place to achieve
continuous flow whilst refuelling vehicles without manual pressure having to be
applied. However, at that time, a number of incidents occurred in the course
of which fuel pumps were damaged, fuel pump nozzles were damaged and fuel
spillage occurred when operatives forgot to remove the fuel nozzles from
vehicles prior to driving away. The Respondents, accordingly, as a safety
measure, had the pins removed so as to ensure manual refuelling and put notices
up on notice boards explaining the reason why the pins had been taken away.
9.
In or about January 2009, another employee, Alan Brown, was
disciplined and dismissed for gross misconduct when he was found to have
inserted a glove into the handle of the fuel pump nozzle to ensure continuous
flow of fuel thereby avoiding having to refuel manually. The fact of and
reason for his dismissal was known to the other drivers, including the Claimant.
10.
In or about January 2009, the Respondents put up another notice on
the notice boards specifically instructing distribution operatives not to jam
the fuel pump nozzle handles to achieve continuous flow, under threat of
disciplinary action if they did so.
11.
On 10 July 2009, the Claimant required to refuel his vehicle. He
started to do so by inserting the fuel pump nozzle into the fuel tank of the
vehicle, the opening to which was on the passenger side. He then jammed the
handle with a stone, to ensure continuous flow. He went to sit in the driver’s
seat of the vehicle. John Wright, the Area Vehicle Services Manager,
noticed on the CCTV that there was an unattended vehicle being refuelled. He
went to investigate. As he was approaching, the Claimant climbed out via the
driver’s door and said:
“I know I shouldn’t have done it. You’re going to tell me off
now.”
12.
The incident was reported and the Claimant was called to an
investigatory interview on 12 July 2009. He was asked to provide his own
written statement, which he did. It included the following:
“When fueling (sic) my vehicle, I put a small stone in the fuel
pump to assist fueling (sic) … Mr Wright came over … he then told me I
was wrong to do this, to which I agreed, also said I had taken on board his
point and that it would never happen again.”
13.
The Claimant was called to a disciplinary hearing by letter dated
15 July which alleged:
“Misuse of company equipment which resulted in a breach of
health and safety.”
14.
At the hearing which followed, on 21 July 2009, it was noted:
“GS stated that he never had hand on pump, puts hand up to that …
GS stated … Put hands up and won’t do it again …”
15.
The Claimant also provided a written statement to the disciplinary
hearing which included:
“I know I was 100% wrong and yes I know that you alone have
the power to dismiss me, as you see fit …
I do know the implications of health & safety measures and
also the environmental damage that can be caused, not to mention the
considerable cost to the company as regards a fuel spillage.
I have, without doubt, made a costly mistake. One which may
cost me my job!
… I would like you to know that I have learned from my mistake …
… if anyone should feel ashamed of themselves then I am the one
who is.”
16.
As these extracts show, the Claimant was plainly well aware, when he
jammed the fuel pump nozzle open using a stone, that he was wrong to do so,
that it was a serious matter, that he had been warned, in writing, not to use
operational short cuts which compromised safety and not to interfere with
anything provided as a safety measure – as the “pin free” fuel pump nozzle
handles clearly were. Further, the Claimant had been clearly put on notice
that he was required to follow instructions in relation to such safety matters.
Whether or not the Claimant had read the notices, he stated at the disciplinary
hearing that he knew why the pin had been removed “through the grapevine”.
17.
An issue arose before the Tribunal as to whether or not the Claimant had
seen the notices explaining why the pins had been removed and specifically
instructing drivers not to jam the pump handles open. During the disciplinary
procedure and before the Tribunal, he denied having seen them. Mr Oliphant,
who chaired the disciplinary hearing, concluded that the Claimant had in fact
seen the notices and the Tribunal found that in all the circumstances, particularly
that the Claimant had given ambiguous answers at the hearing, that was a
genuine conclusion on his part which he was entitled to reach. The Tribunal
stated that they appreciated why he had reached that conclusion and added that
even if the Claimant had not seen the notices, it was inconceivable that he was
unaware that the Respondents had deliberately removed the pins and that, given Mr Brown’s
dismissal, of which he was aware, that it was inconceivable that he was unaware
of the instruction not to jam open the fuel pump nozzle. Put shortly, they
were satisfied that the employer genuinely believed, after a reasonable
investigation, that the relevant employee, the Claimant, had not only jammed a
stone in the fuel pump nozzle handle but also that that employee was well aware
that his actions were unsafe and contrary to specific instructions that had
been issued by his employer. It did not matter how he knew – whether by
reading the notices or otherwise – what mattered was that he did know and he,
nonetheless, failed to pay heed to the instruction.
18.
The Claimant raised various points in mitigation at the disciplinary
hearing – he was fatigued when refuelling on 10 July, he realised the
error of his ways and undertook not to act in such a manner again, he had
previously suffered from tennis elbow (for which he had received a cortisone
injection), although his hand was not on the fuel pump he was only “two minutes
away”, and he had learned from his mistake. The outcome was dismissal.
19.
The Claimant appealed and his appeal was heard on 5 August 2009. He again referred to having been tired, to not having had “formal” notice about
the pins being removed, to there not having in fact been a fuel spillage, and
to having had tennis elbow a couple of years before. He sought to distinguish
his case from that of Alan Brown. His appeal was refused.
The Tribunal’s Judgment and Reasons
20.
The Tribunal were satisfied that the Claimant was dismissed for the
potentially fair reason of gross misconduct, that the Respondents had carried
out a reasonable investigation, that they followed a fair procedure and that in
all the circumstances, dismissal was within the range of reasonable responses.
We have already referred to the way they dealt with the issue about the notices.
At paragraph 91, they noted that Mr Oliphant believed the Claimant
had deliberately jammed the handle whilst refuelling and that he believed the Claimant
knew there were specific instructions not to do so – they were satisfied
that that was a belief that he was entitled to hold. At paragraph 92,
they refer to the Respondents having, in November 2008, drawn a “line in
the sand” by deliberately removing the pins, and to the Claimant being well
aware that they had instructed distribution operatives not to jam the nozzle
handles open.
21.
At paragraph 93, the Tribunal explain:
“93. … The Tribunal was satisfied that the
claimant deliberately used a stone to jam the handle of the fuel pump nozzle.
He knew that this was contrary to the respondent’s instructions. The Tribunal
did not accept inserting a stone in the place of the pin was not inherently
hazardous. The stone was not part of the equipment and was not made for that
purpose. While the claimant remained in the vicinity of the fuel pump he was
sitting in the vehicle cab undertaking paperwork. The Tribunal concluded that
the claimant’s conduct was misuse of the respondent’s equipment and was gross
misconduct.”
22.
At paragraph 96, the Tribunal stated that they were satisfied that Mr Oliphant
had taken into consideration the mitigating factors put forward by the Claimant
before he reached his decision and that the decision to dismiss was a
reasonable one in all the circumstances. Similarly, Mr Wilson, who heard
the appeal, had taken account of all the mitigating factors that were put
forward and had been entitled to reject the appeal.
23.
The Tribunal noted that this occasion of misconduct was, for the Claimant,
a “first offence” and observed that dismissal may be justified in such a case
if the misconduct is so serious that dismissal is a reasonable sanction. They
considered that the removal of the pins made it clear to drivers that they
required to refuel manually, that that message was reinforced when Mr Brown
was dismissed and a further notice put up. When, despite all that, the Claimant
acted as he did and the Respondents were entitled to dismiss.
Relevant Law
24.
The provisions of section 98(1) and (4) of the Employment
Rights Act 1996 were relevant and the Tribunal plainly had proper
regard to them.
25.
Otherwise, this being a perversity appeal, regard may be had to the
various authorities which have stressed that an appeal on such grounds will
only succeed where the Tribunal’s decision was plainly wrong – provoking a
response such as “my goodness, that was certainly wrong” – or where there
are overwhelming grounds that the Tribunal reached a decision that no
reasonable Tribunal on a proper appreciation of the facts of the case and the
relevant law, would have reached (see e.g. Hereford and Worcester County
Council v Neale [1986] IRLR 168, Stewart v Cleveland
(Engineering) Limited [1994] IRLR 440, Yeboah v Crofton
[2002] EWCA Civ 794).
The Appeal
26.
The Notice of Appeal originally contained 14 grounds.
Ground 11 was solely concerned with an allegation of bias. Ground 12
was partly concerned with an allegation of bias and criticism of the Employment
Judge, as were grounds 1 and 2.
27.
By letter dated 28 December 2011 Mr Cameron withdrew the
allegations of bias in grounds 11 and 12. At the start of the appeal
hearing, he withdrew those parts of grounds 1 and 2 which involved
any criticism of the Employment Judge and/or bias.
28.
Grounds 3, 4, 6, 7, 8 and 9 all involved assertions that there
was evidence to which the Tribunal had failed to have regard or that there was
no evidence on which various significant findings were based.
29.
By order seal date 29 November 2011, directing that the appeal be
set down for a full hearing, parties were directed that if either of them
considered that a point of law could not be argued without reference to
evidence given or not given at the Tribunal hearing, they required to give
notice to the other party of that matter within 14 days of that order, and
seek to agree a statement in that regard within 21 days thereafter,
failing which they had a further 7 days within which to make an
application to this Tribunal for, for instance, a note from the Employment
Judge in relation to the evidential issues raised. Accordingly, the deadline
for making any such application was 11 January 2012. No application for a
note from the Employment Judge was timeously made. Mr Cameron did, by
letter dated 3 April 2012 make an application without any explanation for its
lateness other than it was something which “had occurred to him” when preparing
for the appeal but given that lateness and the imminence of the date of the
appeal hearing, it was refused. We were not provided with any agreed statement
relating to the evidential matters raised in the Notice of Appeal.
Submissions for the Claimant
30.
As stated, the first ground of appeal was that the Tribunal had not
judged the reasonableness of the decision to dismiss according to the set of
facts known, believed and expressed by the employer at the time. No notices
were produced in evidence and Mr Oliphant’s evidence was incredible. In
relation to that ground, Mr Cameron submitted that the Tribunal had
indulged in an atypical form of substitution. They had, he submitted,
bolstered the employer’s case and reached findings of fact which differed from
it. He thought that the inference from the Tribunal’s findings was that the Claimant
knew it was wrong to place the stone in the handle but the Tribunal failed to
state the extent of the wrongdoing. They did not say whether or not the Claimant
saw the notices. He believed it was quite clear that the Tribunal had held
that the Claimant knew it was wrong to use the stone but had shied away from
finding that he had received any instruction to that effect. That being so,
how did he know it was wrong?
31.
Mr Cameron sought to make much of the notice point, asserting that
the Tribunal’s conclusion was wrong because they never saw the notices and
could not conclude that the Claimant had seen them. He seemed, at one point,
to suggest that the Respondents’ reliance on the existence and content of the
notices had arisen as a surprise at the hearing – at one point he said, in
terms, that the Respondents had not relied on the workplace notices at the
hearing. That puzzled us, given the references to the matter in the Tribunal’s
judgment and given, moreover, that the Claimant’s ET1 states that his employer
had alleged that he had “defied a workplace notice” and the notice explaining
why the pins had been removed is relied on by the Respondents in their ET3. If
he had been concerned to see the notices and thought it would help the Claimant
if the Tribunal saw them, we could not understand why no steps were taken by
way of, for instance, seeking a document recovery order prior to the hearing.
32.
Regarding the second ground of appeal, according to the Notice of Appeal,
the point to be argued was that there was no evidence or insufficient evidence
to support the Tribunal’s findings in relation to the notices (although the
references in the ground of appeal are not to those paragraphs of the Tribunal’s
judgment that deal with the point about notices). Mr Cameron’s oral
submission was somewhat different and was that the Respondents’ concern was not
the Claimant’s failure to comply with any workplace notice but with
paragraph 7 of the health and safety responsibility document that the Claimant
had signed on 16 October 2007. He did not explain how, if that was
correct, error on the part of the Tribunal was thereby demonstrated.
33.
Grounds of appeal 3 and 5 were taken together. As pled in the Notice of
Appeal, they were to the effect that, on evidence led to which the Tribunal had
not referred, the Respondents themselves were guilty of health and safety
failings in relation to risk assessments, training, devising safe systems of
work and generally maintaining a health and safety regime which complied with
the Health and Safety at Work etc Act 1974 s.2 and the Management
of Health and Safety at Work Regulations 1999. They were,
therefore, according to the written ground of appeal, not entitled to be critical
of the Claimant. In ground 3, the Notice of Appeal states:
“… a health and safety regime is the sine qua non of a
reasonable employer and delinquency in the area the hallmark of an unreasonable
one. Further, it is rank hypocrisy for a delinquent employer to apply a ‘zero
tolerance’ policy to employees for alleged breaches of health and safety
especially in the absence of training or instruction. Rank hypocrisy is not a
quality of a reasonable employer acting reasonably. The tribunal converse finding
was irrational, perverse and erroneous.”
34.
In ground 5, the Notice of Appeal asserted that the notices
referred to were not adequately intimated but intimated “by haphazard display
on notice boards” and that the Tribunal’s approach was “logically flawed”
because it:
“condones an employer’s failure to communicate workplace rules
and train and instruct on health and safety matters. It is an extraordinary
and plainly wrong stance for an employment tribunal to adopt.”
35.
In oral submission in relation to these two grounds of appeal, Mr Cameron
said that the Tribunal’s decision was clearly wrong. The Respondents’ decision
to dismiss was objectively unreasonable. He recognised that, without any note
from the Employment Judge in relation to the evidence, he could not proceed
with the grounds other than in a “truncated way” but it was plain, he said,
that dismissal was not within the range of reasonable responses. Flouting a
workplace rule did not automatically mean that dismissal was fair. Health and
safety had been seen as an aggravating factor but how could that be, when the
instruction had not been conveyed to the employee? The employer had had an
obligation to identify risk, produce health and safety procedures and to train
employees, under reg 13 of the 1999 Regulations. He referred, in
support of those submissions, to a decision of the Court of Session in a
personal injuries claim, Doran v Shanks Waste Management (2010)
CSOH 91, and said that the Respondents had not gone any lengths at all to
fulfil their reg 13 responsibilities. Whilst he recognised that his use
of the word “rank” in relation to hypocrisy, in the written ground 3 was,
perhaps, too strong, he still insisted that there had been hypocrisy on the
part of the Respondents. They had double standards.
36.
Mr Cameron also insisted on the display of notices having been
“haphazard” although he did not point to any finding in fact which supported
that assertion – we noted that there were no findings in fact which could
be construed as doing so.
37.
No submissions were made in support of the fourth ground of appeal.
38.
Ground of appeal 6 was stated, in the Notice of Appeal, to be that
the Tribunal:
“…unaccountably misconstrued the claimant’s evidence by holding
that he did not deny misconduct. The finding was perverse, irrational and
unsupported by the evidence before it.”
and asserted that they had misconstrued his general plea for
clemency.
39.
Further, that ground of appeal stated that:
“Its reliance on the claimant’s alleged confession to establish the
existence of a work place health and safety rule was flawed and erroneous. The
existence of a disciplinary or health and safety rule cannot be established
from a false, coerced confession by the employee alone.”
40.
Before us, Mr Cameron said he was not insisting on that part of the
sixth ground of appeal which asserted that the Respondents had relied on a
false, coerced confession. However, the Tribunal had, he insisted, confused
the Claimant’s “mea culpa” with a confession of guilt.
41.
The seventh ground of appeal asserted that the Tribunal had heard no
evidence to support a finding (at paragraph 17) regarding the knowledge of
other operatives – Mr Cameron’s argument was that the Tribunal had
found that ‘everybody else knew’ but they had not heard from all the other
operatives and so could not draw that conclusion. He did not accept that
paragraph 17, which states:
“17. Those distribution operatives who read the notices knew
that the pins had been permanently removed to ensure that all vehicles were to
be refuelled manually thereby avoiding damage to the fuel pump and fuel
spillage. They were also aware the handle of the fuel pump nozzle was not to
be jammed and to do so could result in disciplinary action.”
only indicated what anyone who had read the notice in question
would, thereby, have come to know.
42.
Grounds of appeal 8 and 9, as stated in the Notice of Appeal,
are to the effect that Mr Oliphant and Mr Wilson failed to take
account of a list of mitigatory factors. The list in ground 8 goes beyond
the factors relied on by the Claimant in his oral and written statements to the
disciplinary and appeal hearings. Mr Cameron accepted that that was so
but submitted that his list, in ground 8, was what the Respondents should
have taken into account namely that the Claimant did not see the warning notice
prior to the incident, that he suffered from tennis elbow which made refuelling
painful, that he had an exemplary record, that he had received no health and
safety training and that the Respondents did not have a safe system of work in
relation to refuelling.
43.
Ground of appeal 10, as stated in the Notice of Appeal, concerned
comparative justice. The Tribunal had judged consistency by reference to what
happened to Mr Brown and that was erroneous. Mr Brown had actually
caused a spillage. Mr Cameron made submissions to the same effect as the
written ground of appeal, initially suggesting that other drivers had been
treated less harshly for similar offences but then accepting that there were no
findings in fact about any other driver apart from Mr Brown.
44.
Ground of appeal 13, as stated in the Notice of Appeal, was to the
effect that the Tribunal’s assessment of the Claimant’s credibility was unjust
and unexplained and ground 14 stated that the Tribunal’s judgment was “an
egregious miscarriage of justice”.
45.
Mr Cameron made no submission as to what should be our course of
action if his appeal were to be upheld.
Submissions for the Respondents
46.
Mr Foster submitted, under reference to a clear and helpful
skeleton that the Tribunal had not fallen into error. They had applied the
correct tests and reached sustainable conclusions. This was now solely a
perversity appeal and the Claimant’s case did not pass the high threshold for
such appeals.
47.
As a generality, Mr Foster referred to the extent to which the Notice
of Appeal proceeded on the basis that there was evidence unaccounted for or a
lack of evidence to support the Tribunal’s findings and submitted that where an
appellant makes such assertions, they cannot properly be considered without, in
the absence of an agreed statement, there being a note from the Employment
Judge.
48.
Mr Foster submitted that the findings of the Tribunal demonstrated
that the Respondents had had a consistent approach to the nature of the wrongdoing,
throughout. He referred to the Claimant’s admissions and the letter of
dismissal. The submissions that the Claimant had received no training or
instruction was contradicted by his own admissions. Further, the focus on the
notices failed to address the wider issues including the fact of the Claimant’s
knowledge about the refuelling rules. Regarding the sanction of dismissal, the
Tribunal plainly had the correct test in mind. In applying it, they took
account, appropriately, of the fact that the Respondents considered that what
the Claimant had done was gross misconduct, that the only comparable
case – Mr Brown’s – had resulted in dismissal, and that there
was ample evidence that the Claimant knew he should not have done as he did.
49.
Regarding that part of the appeal which asserted that the Respondents,
as a generality, had an inadequate health and safety system, they did not have
to establish anything about their general regime. The point was whether or not
the Respondents had reasonably concluded that the rule in question was
sufficiently clear to its employees including the Claimant. The allegation of
hypocrisy was perverse and wholly unsupported on the evidence. It was not
raised in the ET1, at the disciplinary hearing, on appeal, or before the Employment
Tribunal. There was no reason for the Tribunal to consider the matter or form
any view on the extent of the Respondents’ general compliance with their duty
of care.
50.
Mr Foster submitted that to suggest that the Tribunal misconstrued
the evidence regarding the Claimant’s admissions was to fly in the face of
rationality. What the Claimant said, repeatedly, could not be construed as
other than a plain admission of wrongdoing. Nor, he added, was it ever any
part of the Claimant’s case to the Tribunal that those admissions had been
coerced or were false.
51.
Mr Foster took issue with Mr Cameron’s interpretation of
paragraph 17.
52.
Regarding mitigation, Mr Foster submitted that there was ample
evidence regarding mitigation and referred to the Tribunal’s conclusion that it
had been taken into account. It had never been suggested to the Employment Tribunal
that there had been any failure by the Respondents in that regard.
53.
Overall, the Tribunal was the ultimate arbiter of fact, their findings
were clear and they had reached a conclusion which was open to them. The
appeal should be refused.
Discussion and Decision
54.
We have no hesitation at all in concluding that this appeal was
manifestly ill founded and shown to be wholly misconceived. We concluded that
it was unreasonable to persist with it, particularly once the bias allegations
had been withdrawn and nothing had been done timeously to seek a note in
respect of the various allegations regarding evidence led or not led. The fact
that the appeal had passed the sift should not - if it was - have
been regarded as sufficient reassurance that the case was a stateable one. Having
heard what was said in support of the Notice of Appeal, we can only conclude
that any reasonable representative would have realised that it could not
properly be advanced if not at the outset, at least on reviewing the Claimant’s
appeal.
55.
We make these preliminary observations because none of the arguments
ultimately advanced were shown to be even stateable. There is no basis for the
suggestion that the Tribunal “indulged in a form of substitution”, atypical or
otherwise. Rather, they considered, appropriately, what it was that the Respondents
had concluded the Claimant had done, whether or not that conclusion had been
reached after a reasonable investigation and whether or not their decision to
dismiss was, in all the circumstances, a reasonable one. Contrary to what was
suggested by Mr Cameron, there is nothing in the judgment of the Tribunal
that suggests they did anything to “bolster the employer’s case”.
56.
To a large extent, Mr Cameron’s submissions focused on the question
of whether or not the Claimant had read the workplace notices but in doing so,
he wholly missed the point. The Tribunal made clear findings that one way or
another, the Claimant knew that drivers had been told not to jam open the fuel
nozzle handles and knew that, when he did so, he was doing something that he
ought not to have done. What mattered was not how the Claimant knew that but
that he did know it – something from which he did not shrink as evidenced
by the nature and extent of his admissions, to which we have referred above. Further,
Mr Cameron failed to appreciate that whilst the Tribunal had not
themselves gone as far as saying that they were satisfied the Claimant
had seen the notices, they did find that Mr Oliphant had been and that in
all the circumstances that was a conclusion he was entitled to reach. That was
enough for Burchell purposes (British Home
Stores v Burchell [1978] IRLR 379) as the Tribunal, correctly,
appreciated.
57.
As regards that part of the appeal which focused on an assertion that
the Respondents had, in general, failed in their statutory duties under the
1974 Act and 1999 Regulations and were therefore guilty of applying
double standards, we would observe as follows. First, there was no reliance on
any such case before the Tribunal. Secondly, it would, in any event, have been
irrelevant to the issue of whether or not the Claimant was fairly dismissed for
knowingly misusing company equipment in such a way as to amount to a breach of
health and safety. Thirdly, ground 3 of the Notice of Appeal contained
intemperate language which we consider to have been wholly inappropriate.
Mr Cameron did not point to anything in the Tribunal’s findings which
could begin to have justified the offensive descriptions of the Respondents as
being a “delinquent employer” or as being guilty of “rank hypocrisy” or indeed
“hypocrisy”. That is not surprising because there is nothing whatsoever in
them that could possibly have justified such a description nor, in the event,
was anything put before us by way of note from the Employment Judge, for
instance, which could have begun to support it. What was surprising is
that, when given the opportunity to withdraw those allegations, Mr Cameron
confined his response to deletion of the word “rank”.
58.
It may be that Mr Cameron’s line of argument based on the Respondents’
statutory health and safety duties emanated from a reading of the opinion of
Lady Stacey in the case of Doran. If we are right
about that, he misdirected himself. Doran was a decision in a
personal injuries claim and of no relevance to the issue that the Tribunal had
to determine. Mr Cameron ought to have appreciated that.
59.
Similarly, there had, as it turned out, never been any basis for it
being alleged that the Claimant had made a false, coerced confession. We were
given no explanation of why that very serious allegation of impropriety was
ever made nor why it was not withdrawn at an earlier stage. Nor, we would add,
was there any basis for Mr Cameron alleging, as he did, that the notices
referred to were on “haphazard display”, which seemed to us to be nothing more
than hyperbole designed to seek to present a general impression that the Respondents
were simply irresponsible employers who were not to be trusted – a case
which, we hasten to add, was not in any way supported by the Tribunal’s
findings or by anything in the other documents to which we were referred.
60.
In respect of that line and remembering that there had, originally, also
been a case of bias pled, we found it difficult to resist the conclusion that
the Notice of Appeal had been drafted without regard to the propriety that is
to be expected of a responsible solicitor.
61.
Regarding other matters, Mr Cameron’s interpretation of
paragraph 17 of the Tribunal’s judgment was, we agree, erroneous but even
if he had been correct, it would not have shown that the Tribunal erred as
regards the central issues in the case. As for mitigation, Mr Cameron’s
list was not the list of factors in fact relied on at the time and was not
accurate – the Respondents were satisfied that the Claimant had seen the
notices, there were no findings that as at the time of the incident the Claimant
was suffering tennis elbow symptoms at all (the only references were to his
having done so at a much earlier date), he had received appropriate health and
safety directions as evidenced by the documents to which we have referred, he
knew about the instruction regarding use of the fuel pump nozzle handle, and
there was no basis whatsoever for approaching matters on the basis that the Respondents
did not have a safe system of work in regard to refuelling. The list in ground
8 was another example of the hyperbole which characterised the Notice of Appeal.
Whilst Mr Cameron suggested, at one point, that the Tribunal had failed to
explain properly why they were satisfied that due account had been taken of
mitigation, we do not accept that they were required to say more than they did,
particularly where it was not argued before them that the Respondents had
failed to take due account of it.
62.
Finally, regarding such criticism of the Tribunal’s findings on the Claimant’s
credibility as was made, Mr Cameron did not point to anything which showed
that the Tribunal’s finding on a matter which was very much within their
province could, in way, be impugned. Indeed, it seemed to us that the Tribunal
were careful to explain exactly why they considered that the Claimant’s
credibility was called into question and were plainly entitled to find as they
did, in that regard.
Disposal
63.
In these circumstances, we will pronounce an order dismissing the
appeal.
