Gilbert v Data Express [1992] UKEAT 185_92_1901

EAT
Gilbert v Data Express
[1992] UKEAT 185_92_1901 · 1992-01-19

JUDGE J HICKS QC:

Mr Gilbert was a driver for the Respondents, Data Express, and on the 30 April 1991 his vehicle broke down quite close to the employers' depot, about a mile and three-quarters away. According to his Originating Application to the Industrial Tribunal, at 6.45 pm he reported the position to a person he describes as the shift foreman, but who is also described as the shift manager Mr Adrian Flay, who said that he would get someone out straight away. At 7.15 pm Mr Flay rang and asked if the AA had arrived. He replied "No but don't worry about that just get 2 gallons of diesel out to me." He says that he waited another half hour but nobody arrived so he walked back to the Depot. When he arrived he spoke to Mr Flay and said angrily:
"...you left me sitting out on that dangerous by-pass unnecessarily so you can get the vehicle back yourself."
Towards the end of his Application he said:
"......whilst I agree that my language was a bit strong it was common for the Depot"
The employers suspended him at the close of the next day's working and then on 3 May he received a letter of dismissal dated 2 May, in which the Depot Manager, Mr Peter Dore, wrote:
"Confirming our meeting of 1st May 1991 regarding your conduct of 30th April 1991 when, having run out of fuel, you abandoned your vehicle, without notice, containing customer's products and on return to the depot hurled very abusive language at your Shift Manager.
I would confirm that your conduct was totally unacceptable, having disregard for the security of your vehicle and contents plus your attitude to management will not be tolerated further. During the meeting you still continue to use very abusive language.In view of your previous conduct, for which you have received both a last and final written warning I have no alternative but to dismiss you from the service of this Company forthwith.You will receive two weeks pay in lieu of notice which will be forwarded in due course.Mr Gilbert applied to the Industrial Tribunal on the basis that that was unfair dismissal and the Tribunal dismissed his application. He appeals and this is the preliminary hearing of his appeal and we have to consider whether there is any arguable point open to him which would justify a full hearing in the Employment Appeal Tribunal.In his submissions to us he says, first, that paragraph 9 of the Tribunal's Reasons is wrong because the Tribunal ignored the statutory duty of the employers under section 2 of the Health and Safety at Work Act 1974. It would seem that the significance of paragraph 9 of the Tribunal's Reasons is that they record there that Mr Gilbert had said that the vehicle:
"was in a difficult and dangerous position and it was partly because of fear for his own safety that he left."
That seems to be a summary of his evidence and submissions to the Tribunal, so the Tribunal had before it the point made by Mr Gilbert that safety was a material factor in his decision, so they cannot be criticised for failing to take account of that argument. Insofar as it seems to be a bare submission that they ought to have referred specifically to section 2 of the Health and Safety Act 1974 Mr Gilbert accepts that that section was not cited to them, and in our view, therefore, is not really a valid or arguable criticism of the Tribunal in point of law that they failed themselves to bring out and refer to that specific statutory provision.Moreover, in regard to the issue of personal safety generally, Mr Gilbert accepted before us that as far as personal safety was concerned, although of course it would have put him in some discomfort in the sense of being exposed to the elements, he could perfectly safely have remained in a position where he was not at risk of being injured by passing traffic but was still in a position to be, as it were, in charge of the vehicle in the sense of having it in his sight and being able to intervene if any attempt were made to interfere with it. We do not, therefore, consider that any arguable point of error of law in the Decision of the Industrial Tribunal arises on that score.He takes another statutory point in saying that he was already over the statutory limit of 11 hours' driving plus one hour's rest by the time he returned to the depot, but that clearly was a point which he did make to the Industrial Tribunal and which they referred to and had in mind.He also criticises paragraph 9 of the Industrial Tribunal's Reasons because one of the things they say is this, after referring to the fact that the employers did not speedily send anyone out, and indeed had not done so by the time he walked back to the depot:
"He regarded this as a provocation and determined to wait no longer, leaving the van. However, he had a phone in the vehicle and could, had he wished, have indicated to the management that if they did not send out relief to him in a certain space of time, he would consider himself entitled to leave the vehicle."
Mr Gilbert criticises that as being hypothesis or speculation on the part of the Tribunal, because he says the employers did not rely on the availability of the telephone (which he says is, in fact, a two way radio) as part of their case. However, it seems to us that having regard to his own Originating Application in which he referred to not one but two uses of the radio or telephone, it was a perfectly valid inference which the Tribunal - and matters of inference and fact are for them - were entitled to draw that that was something which he could have done if he considered that he was being driven into a position where the proper course was to leave the vehicle.He complains that there was no evidence before the Tribunal what attempt, if any, the employers did in the end make to recover the vehicle, but that does not, in our understanding, entail any error of law on the part of the Tribunal; they were able to deal with the matter on the evidence before them.He then criticises paragraph 8 of the Reasons, which says:

"8...... He was dismissed for leaving his van unattended - and loaded"

and he says that was an inaccurate statement of the reasons actually given by the letter of dismissal, which simply refers to abandonment without referring to vehicle having been loaded. There is absolutely nothing in that point, because it is quite plain from that letter that the employers in their letter of dismissal refer to the fact that the vehicle contained customer's products and that disregard for the security of the vehicle and contents was something which they regarded as a serious matter.He next complains, and this is one of the matters which is actually referred to in his Notice of Appeal - the other matters which I have dealt with so far are not - but both in his Notice of Appeal and before us he complains of the absence at the hearing before the Tribunal of the shift manager/foreman as a witness. That is a matter of how the employers conducted their case. It is not for the Industrial Tribunal to call additional witnesses and moreover the absence of an employers' witness in general is likely to work to the advantage of the employee, because it means that the employee's own account of the relevant incidents - in this case the encounter between him and the shift manager on his return - is effectively unchallenged by any direct oral evidence to the contrary. And insofar as he hoped to gain any admissions from the shift manager by way of cross-examination, again, those were matters of which he could have given evidence himself and in the shift manager's absence they would be likely to be uncontradicted - so there is nothing in that point.He then complains, both before us and in his Notice of Appeal, that a letter was produced to the Industrial Tribunal from a department of the Royal Air Force at RAF Kemble, which he says was a false letter. He agrees that he did make that criticism before the Tribunal, so that the letter was not a matter which was slipped in without his knowledge and unchallenged by him. What the Tribunal made of it, in the face of the challenge by him, is entirely a matter for the Tribunal and does not indicate that they were in error in law. The fact is that the Industrial Tribunal do not expressly refer to that letter.However,they do refer at two points to matters of earlier complaints connected with and leading to warnings by the employers, one of which on the face of it relates to the same incident to which that letter from RAF Kemble relates, because it was the subject matter of a written warning by the employers on 31 January 1991. What seems to us quite apparent from the way in which the Tribunal deals with that in two places is that the Tribunal(a) had those matters before it but(b) did not regard them as matters of great importance and certainly do not, on the face of it, treat them as being prejudicial to any substantial extent to the employee, Mr Gilbert.What they say in paragraph 4(b) is:
"4 (b) .... Even accepting the respondents' [i.e. the employers'] evidence in full, the Tribunal regards the majority of those matters trivial but we do observe that the warnings dated 31 January 1991 and 20 March 1991 both related to the manner in which he allegedly spoke and behaved towards customers."
Then again in paragraph 8 they say:
"8 All the matters complained of by management prior to the incident on 30 April"
- and that on the face of it is clearly not confined just to the employers' own warning letters but to the whole case put forward by management about complaints before 30 April - "related to Mr Gilbert's attitude and behaviour towards customers. He was dismissed for leaving his van unattended and loaded - which is the behaviour of a different sort."Again the Tribunal, in referring to those matters, seem to be making a comment favourable, rather than otherwise, to the employee, Mr Gilbert.The complaint about the letter from RAF Kemble was wrapped up as part of a general allegation that Mr Peter Dore, the depot manager who actually dismissed Mr Gilbert, was to put it bluntly, a dishonest person and to use another phrase of Mr Gilbert's "up to no good".However, it is quite clear that that accusation was fully ventilated by Mr Gilbert before the Industrial Tribunal and it is for the Industrial Tribunal to decide what weight to give to matters of that kind and it is not for us to interfere with the decision which they reached.It was clear that the complaint by the employers and the ground on which they dismissed was two-fold, first, the abandonment, as they put it, of the vehicle - and most of the matters which we have dealt with so far relate, insofar as they relate to the ground of dismissal, to that. The other was the language used by Mr Gilbert to the shift manager on his return.I have referred to the terms of the Notice of Application, which plainly amount to some sort of admission that fairly strong language was used, and Mr Gilbert said to us "I have never apologised for my use of language because it is not necessary to apologise, I only shout when it is necessary". I think we are entitled to assume that that was in general the attitude which he adopted at the hearing before the Industrial Tribunal, and what the Industrial Tribunal made of that in relation to their ultimate finding that the employers' dismissal was on the ground of language and attitude, as one of two matters, is for the Industrial Tribunal.Mr Gilbert also makes the point to us that the abandonment of the vehicle was being used by the employers on this occasion as an excuse, rather than as a genuine reason for dismissal, but that is also a point which he agrees that he made to the Tribunal and it was for them to decide what weight to give to it and what findings to make upon it.None of those specific grounds therefore, in our judgment, presents any arguable point of law which would justify this appeal going to a full hearing.In the notice of appeal Mr Gilbert also includes, as his first ground, the general ground that the verdict was wholly inconsistent with the evidence. He has not argued that as a separate ground before us and we need only say that, having read the papers, we see no prospect that that could be made an arguable ground of appeal in this case and we therefore must dismiss this appeal.