Moon v Selby [1996] UKEAT 264_96_1211

EAT
Moon v Selby
[1996] UKEAT 264_96_1211 · 1996-11-12
MR JUSTICE LINDSAY : On the 21st January 1996, the Industrial Tribunal under the Chairmanship of Mr Gorst, held that Miss Selby had been unfairly dismissed by Mrs C A Moon, and that Mrs Moon should pay Miss Selby £524.71, plus a further £104.94 as an unlawful deduction from wages.We have before us Mrs Moon's appeal against that decision. She has been represented by Mr Massey. The respondent, Miss Selby, appears by Mrs Siddall. Mrs Moon has earlier been given leave to amend her Notice of Appeal.The background is as follows: Mrs Moon ran and runs a nursery school for children between the ages of six months and five years. In May 1994 she began to employ Miss Selby as a nursery nurse. On 22nd February 1995 Miss Selby gave notice to terminate her employment on 22nd March 1995. After that notice was given, but before the notice had expired, it came to Mrs Moon's notice, around about the 6th March 1995, that Miss Selby together with another employee of the school, Mrs Hamlin, had expressed concern to the local authority about safety, fire and staff/pupil ratio considerations as they affected Mrs Moon's establishment.The Industrial Tribunal went on to say:
"8. When this came to the knowledge of the Respondent she called the Applicant in to see her and according to the Applicant said "You know why you are here, we don't appreciate what you have done, do you want to go now or at the end of the week?" The Applicant interpreted that to mean that she was being dismissed and elected to go that day. Mrs A Hamlin, who shortly before the Applicant was dismissed, had been in conversation with Mrs Moon, said in evidence that Mrs Moon had in that conversation said to her that she was going to sack the Applicant for going to the Social Services."
The issue of safety, fire and so on, brings into play section 57A(1)(e):
"(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee-
. ..(e) in circumstances of danger which he reasonably believed to be serious and imminent, took or proposed to take, appropriate steps to protect himself or other persons from the danger."(2) For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including in particular, his knowledge and the facilities and advice available to him at the time."There is a sub-section (3) as well, which we do not need to go into at this stage.The problem which the Industrial Tribunal understood to exist, and their answer to it, is posed in paragraph 11 of their full reasons. It reads as follows:
" If [ our emphasis ] the Applicant had a genuine belief that the children at the school were in danger she was entitled to call upon Social Services to investigate and if she was dismissed for so doing that dismissal would be unfair. On the hand if, as the respondent would have us believe the Applicant had made "a malicious and false complaint" the dismissal would be fair but only if the Respondent came to that conclusion after making a thorough investigation including questioning all the relevant parties including the Applicant and putting to the Applicant the incriminating evidence and giving the Applicant an opportunity to explain her conduct. The evidence was not put to the Applicant and she was not asked for an explanation from which it follows [ our emphasis ] that having regard to equity and the substantial merits of the case it cannot be said that the dismissal was fair."
The award was 35 days loss of earnings and one weeks' holiday money.Now crucial, as we see it, to the appeal before us, is this question: Did the tribunal hold that Miss Selby had been dismissed for a reason or principally for a reason falling within section 57A(1)(e)? If they did, then the dismissal, without anything further being proved, would be unfair, at all events on the assumption for the moment that the tribunal had in front of it evidence from which they could properly have come to such a finding.Again, if the Industrial Tribunal did hold there to be a section 57A(1)(e) case, then there would have been no need for the applicant to satisfy section 64 of the Act as to having been employed for the length of the prescribed qualifying period. She began work, as I said, on 3rd May 1994; she was dismissed in March 1995. So plainly she had not been continuously employed for not less than two years. If, but only if, there was to be a case within section 57A(1)(e) would Miss Selby escape the need to satisfy section 64. So it was quite plain that the question of whether or not the tribunal found there to be section 57A(1)(e) case is absolutely central to this appeal.We, unhappily, are satisfied that there was no such finding on this important point. Going through the full reasons, which are just over two pages long, we find in paragraph 5 a sufficiently accurate paraphrase of section 57A(1)(e). The reference in it to reasonable belief in the seriousness and imminence of the danger has to be noted. It is not enough for there to be a danger; it has to be reasonably believed to be serious and imminent.Paragraph 7 sets out the beginning of the employment and notice, and then says:
"... On or shortly before 6 March 1995 the Respondent discovered that the Applicant and a fellow employee, Mrs Hamlin, had during the currency of the Applicant's notice period called on the Local Authority to express concern as to whether or not the Respondent's establishment was being conducted safely and with particular reference to the staff/pupil ratio and the requirements of the fire authority."
Well, there is no holding there that Miss Selby's concerns were either genuine concerns or justified concerns. There is no holding there about her belief or the reasonableness of that belief. Moreover, it is rather difficult to see that the staff/pupil ratio would be a matter that could give rise to a danger that was serious and imminent, or which might be reasonably believed to be serious or imminent. at all events, unless there had been some very recent change in the staff/pupil ratio. There is no finding of any developments of that character. Indeed, the concern, as the tribunal mentioned it in paragraph 7, was not that there was a danger, but whether or not the establishment was being conducted safely.Then one goes to paragraphs 8 and 9 of the short full reasons. They, as it seems to us, add nothing that relates to the belief or the grounds for that belief in Miss Selby.Then we get to paragraph 10. Now paragraph 10 begins with the words:
"Thus we get the position that the Applicant, believing that the children at the school might be in danger due inter alia to what she believed to be an incorrect staff/pupil ratio and believing that the fire precautions were inadequate, reported her suspicions to the Social Services in the belief that the Social Services would investigate. The Social Services did investigate and it came to the Respondent's knowledge that the Applicant had been the instigator as a result of which she sacked her."
That word "thus" there, suggests that the grounds for the Industrial Tribunal's following passage had already been given. But they had not. Nor is there there any mention of seriousness or imminence in relation to the danger. Nor are we happy with the reference to the position being that the children might be in danger, rather than that they were in danger. We do not see paragraph 10 as amounting to a finding within section 57A(1)(e).I would add that there is no reference to section 57A(2), which, as I read earlier, refers to surrounding circumstances and is a sub-section to which one might expect reference to be made if there is a finding of the case being within section 57A(1)(e).The fact that paragraph 10 did not amount to a finding is further made good in paragraph 11. It begins " If the Applicant had a genuine belief" and " if she was dismissed for so doing". One would have expected, had the tribunal held that there was a 1(e) case, for them to begin " As the Applicant had a genuine belief" and " as she was dismissed for so doing". The word "if" really does put difficulties in Mrs Siddall's way.Then, moving on to paragraph 11, which I have already read, the passage "from which it follows" is very difficult for Mrs Siddall to deal with, because the passage immediately before the words "from which it follows" are not referring to any belief in Miss Selby or the reasonableness of any belief in Miss Selby about danger and safety but are referring instead to the fact that there had been no sufficient investigation by Mrs Moon and no opportunity given to Miss Selby to answer the case against her. It seems to us, doing the best we can with these rather poor reasons on the part of the Industrial Tribunal, that their reasoning was as follows: Even if, assuming in Mrs Moon's favour, that this was not a section 57A(1)(e) case, even so Mrs Moon should have investigated the complaint against Miss Selby and then have given Miss Selby an opportunity to meet that complaint, but, as she did neither, it follows, (in other words using their words "from which it follows") that the dismissal was unfair.It seems to us that the Industrial Tribunal thought that there was a way round, a way to duck the central issue of section 57A(1)(e). Of course, they seemed to have also overlooked that once they did not establish this to be a section 57A(1)(e) case, then they ran into difficulties in that Miss Selby had not served the necessary qualifying period.As we have not got the material necessary it is quite impossible for us, and it would be wrong as a matter of jurisdiction even if we had the material, for us to come any view or express any view on whether there was a section 57A(1)(e) case. The matter was hotly contested and the evidence of a number of witnesses was relied upon. But in the absence of a clear finding or indeed any finding as to section 57A(1)(e), we see this as a matter that has to be remitted to the tribunal to be heard under a different constitution.An application for costs on behalf of the appellant refused. Legal Aid taxation granted for both parties.