Brendon v BNFL Flurochemicals Ltd [1996] UKEAT 766_95_0407

EAT

Brendon v BNFL Flurochemicals Ltd

[1996] UKEAT 766_95_0407 · 1996-07-04

JUDGE HULL QC :

This is an appeal to us by Mr Brendon against a decision of the Industrial Tribunal sitting at Manchester under the chairmanship of Mr Robertson, with two industrial Members, on 2 February and 7 March 1995. Mr Brendon had complained to them of unfair dismissal and also that there had been wrongful deductions from his salary and that he was entitled to make claims under the Wages Act.

Mr Brendon is a man of scholarship. He is an Oxford graduate in chemistry and he was employed by the Respondents, BNFL Flurochemicals Ltd, at their premises at Salwick, which we understand is near Preston. He was a man whose occupation there has been variously described. One description was flutec, that referring to one of the chemicals involved, business manager; another description being sales and marketing executive.

His employment began on 4 October 1993. His employers, who are a subsidiary of British Nuclear Fuels Ltd, became dissatisfied with the way that he was doing his job and he was dismissed with effect from 22 July 1994, when he was paid money in lieu of notice and certain other payments were made to him which he said were not sufficient. He made certain other claims which we are not concerned with and then be complained, as I say, to the Industrial Tribunal.

It is self-evident that he had not done the two years which an employee is normally expected to serve before he can maintain a claim in accordance with provisions of s.64 of the Employment Protection (Consolidation) Act 1978. However, what he said was that his dismissal was for - actually he puts two inadmissible reasons but, in fact, the one which we have been hearing about in this appeal is one inadmissible reason, that is under s.57A of the Employment Protection (Consolidation) Act 1978. That is a provision relating to health and safety and on grounds of, no doubt, high policy, nothing to do with us directly, Parliament has, in accordance we gather with European Law, inserted that fairly recently. That section provides:

"(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 -"

and then there are various health and safety grounds, as they have been called.

(a) :

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

If the Tribunal finds that the dismissal was for such a reason under s.57A, it is to be compared perhaps with dismissal on the ground that the employee was engaging in trade union activities or belonged to a trade union. It is inadmissible and it is automatically unfair. When the employee has been employed for less than two years and, therefore, wishes to bring himself within s.57A for the purpose not merely of establishing that his dismissal was unfair, but also of showing that the Tribunal has jurisdiction, notwithstanding that he has not served for the full two years, then the burden is on him to show the reason and the Tribunal so correctly directed themselves.

In their IT3, the employers said that the reason for his dismissal was:

"Capability - the applicant did [not - they have left the `not' out] possess the qualities required to perform the job."

That is repeated in paragraph 8. That was their case. Therefore, the Tribunal at the hearing embarked on the necessary enquiry into the facts.

They heard the Applicant, Mr Brendon. They heard Mr Denison, who was the managing director of the Respondents and they reached certain conclusions of fact. They found that, putting it shortly, Mr Brendon had not been dismissed for a health and safety reason but for various reasons concerned with his capability of doing his job, which they went into. They found that his Wages Act claims were unjustified and those have been abandoned so far as this appeal is concerned. We are glad to hear that the employers admitted a mistake and undertook to make good the mistake and we certainly hope that has happened. It was a minor matter. The case has been put forward on his behalf very forcefully like this: in truth it was a health and safety reason that led to his dismissal and the Tribunal should so have found. There is enough in their decision, says Mr Henderson, to show that that should have been their conclusion and he puts it like this. Among the substances sold by the Respondents was a particular chemical which apparently is harmless in itself. That chemical, no doubt, has various uses, as chemicals do. One possible use is in the course of eye operations. So far as we know, there is no prohibition on its use for that purpose in this country or many other civilised countries and apparently there is no prohibition on its use in Canada, to which destination the chemical was to be, on occasions, exported and what is said is that the customer in Canada was suspected, at any rate by Mr Brendon, of intending to export all or part of what was sent to him to the United States of America. In the United States of America, we are told, the use of the chemical is prohibited, for the purpose of eye operations, by Federal law. That, we are told, is because it sends people blind or may do so and, therefore, the United States has prohibited its use. Mr Brendon was greatly concerned about this matter, so much so that he devoted a good deal of time to looking into both the legal position and the position from a chemist's point of view. That and associated matters such as his dealing, or attempting to deal, with the matter, led to his failure to effect sufficient sales to please his employers.

I am paraphrasing what was said to us very eloquently by Mr Henderson. That is the way the case is put and therefore it is said that the perceived inefficiency or lack of enthusiasm, lack of orientation to commercial sales, which the employers detected and which led them to dismiss him, was in fact and in truth caused by a health and safety matter and, therefore, although it was put that they were dismissing him for commercial inefficiency, for lack of capability in his job, which was on any view connected with sales, therefore the Tribunal should have been driven to the conclusion, by their own findings, that in truth he was being dismissed because of his solicitude for American patients who might be illegally operated on with the use of this chemical, in defiance of Federal Law.

I put it like that on the basis of what we have been told. It is right to say that a good many of the statements which I have made appear to us not to be fully, or indeed at all, justified by findings of the Industrial Tribunal, nor does every step in the argument appear to us to be supported by logic or, indeed, commonsense but that is the way in which it is put and, therefore, we must deal with it.

We have said that this is not a case where it is alleged that the findings of the Tribunal are perverse in the sense that they are not supported by evidence. There has been no application by or on behalf of the Appellant for the notes of evidence. There has been no affidavit as to the conduct of the Industrial Tribunal, which the Industrial Tribunal could be invited to answer. It appears that they conducted a patient and careful enquiry and dealt with the matters which were put before them. That is the way it is put.

Before I go to the findings of the Tribunal I would refer more fully to what s.57A actually says. Mr Henderson suggests to us that there is no warrant for restricting, at any rate, certain parts of that section to the workplace. He says that in effect it is quite capable of applying worldwide so that, for example, an employee who is engaged in some manufacturing task or some sales task or other task on behalf of a company from where a substance or product is to be sent to some other part of the world where it is ostensibly to be used perfectly lawfully, who becomes aware that it may be used or is being used in a dangerous way, illegally exported perhaps to some other country, would be perfectly entitled to devote time and attention and anxiety, so to speak, at work to that matter under s.57A. He says that there is no warrant for limiting the operation of that section.

We do not propose to decide that submission today. Certainly, it is arguable that in certain ways the section may stretch beyond the workplace and it may well be that, for example, an employee may legitimately be concerned about something which necessarily happens outside the factory or the office or the shop or whatever it may be. We are not going to decide that.

(c) and I read that to show what it authorizes and requires:

"(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 -

...

(ii) there was such a [safety] representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

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."

It was that, said Mr Henderson, which applied here (or may have applied because that is enough, I think, for the purposes of his argument) and he says what might have happened in Canada and the law-breaking which might have followed in the United States, was such a circumstance.

Supposing that is so, what would be behaviour under s.57A which would not justify the employer in dismissal and which would amount to an improper reason, an automatically unfair reason? The answer is under paragraph (c), i.e. bringing:

"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."

There it is. If he goes to his employer and speaks to him or writes him a letter or 'phones him, adopts reasonable means to make sure that the employer knows that there is something which he reasonably believes is harmful or potentially harmful to health or safety, then he must not be dismissed for that. That is all that the section says. It is apparent at once that Mr Henderson's argument goes far beyond the terms of the Statute. What he was saying to us was that Mr Brendon was entitled to devote such attention to these matters that his work suffered and that his efficiency as a sales executive fell off so seriously that his employers were minded to dismiss this well-qualified man. So it does, on the face of it, appear to be a very difficult argument to sustain on the facts of this case.

Having said all that we go to what the Industrial Tribunal did, in fact, decide. I am not going to read the whole of their decision. It set out some of the facts which I have already referred to. They refer to the personnel who were responsible. There was, in addition to Mr Denison, a Dr May and he was the commercial manager, who was not called to give evidence, a matter on which the Appellant comments to some extent. They say what evidence they have received. They refer to an Italian firm called Rovi. It was proposed to enter into an agreement for supply and to make Rovi commercial concessionaires of the Respondent's products and there was a good deal of evidence about that, because the lawyer employed by the Company apparently advised that the proposed agreement would fall foul of European Law, as being an improper agreement under the competition laws. They also refer to the matter which I have dealt with at some length, the Canadian company to whom one of the products was exported. They recite, among other things, that one particular consignment had actually been impounded in the United States; and then they come on to the matter on which their decision depends.

They set out that there was tension between Mr Brendon and his colleagues. They set out the unhappy fact that Mr Brendon was questioning the ability of Mr Abbott, who had advised, and then they went on to their findings. They refer to his correspondence with Mr Smith, the Respondent's chairman, about the unfairness of his dismissal, in none of this correspondence, they say, did the Applicant raise any complaint that he believed he had been dismissed for raising health and safety issues.

They then make a finding adverse to the Respondents, they said:

"It is worth commenting that the applicant was dismissed in circumstances which would almost certainly be regarded as unfair in an ordinary unfair dismissal case. There was no disciplinary hearing or opportunity for the applicant to put his case, nor was there any warning prior to 22 July 1994 that his employment might be at risk. Equally, he was denied any opportunity to make any appeal against his dismissal. No doubt the way in which the respondent dealt with the applicant's dismissal was influenced by his short service."

We are told that the Industrial Tribunal should, on the basis of that, have made adverse inferences against the employers and, in particular, another matter which they should have made adverse inferences about was the failure of the employers to give proper particulars of their case, as it was said, although apparently the Industrial Tribunal was asked to make an order for particulars and declined to do so. It was also said that the employers had failed to make proper discovery of documents and, again, that was a matter the Industrial Tribunal might be entitled to take into consideration. The important point is that they heard Mr Denison and they said that they accepted his evidence.

After dealing with still further matters the Industrial Tribunal reached the essential part of their decision where they had to set out their conclusions about the matter. They said:

"10. The burden of proof in this case rests on the applicant. However, we accept that if the applicant is able to show circumstances which suggest that he may have been dismissed for a health and safety reason, it may then be appropriate to draw inferences if the respondent is unable to put forward any convincing alternative explanation for the dismissal. In this case, however, we have no hesitation in finding that the applicant has failed to establish that the reason for his dismissal was an inadmissible health and safety reason contrary to Section 57A(1)(c) of the 1978 Act. We accept Mr Denison's evidence that the reason for the applicant's dismissal on 22 July 1994 was the applicant's conduct in relation to the Rovi contract and, in particular, his behaviour towards Mr Abbott in pursuing his objection to Mr Abbott's legal advice. This was set against the respondent's increasing concern about the applicant's approach to his job and his ability to concentrate on and agree objectives which had been placed before him, particularly in regard to achieving sales."

They then deal with the question of his car, which we are not concerned with. They say:

"... we are satisfied that ... the fact that he had raised specifically what he regarded as health and safety concerns had not been any part of the decision to dismiss. Further, we do not accept that when the applicant raised the matter of Mr Jacobsen's terms and conditions of employment earlier in the year, he had done so for a health and safety reason. ...

11. We find therefore that the applicant has not shown that the reason or the principal reason for his dismissal was an inadmissible health and safety reason and his complaint of unfair dismissal for that reason must therefore fail."

On the next page they deal a little further with the question of this chemical. They say:

"The applicant was concerned about the possible end use to which Labticians [the Canadian firm] might be putting the product. He was concerned that Labticians might be using the product for a dangerous end use. We do not accept that the applicant's concern about the end use of the product, even if reasonably held, could amount to circumstances connected with his work which were harmful or potentially harmful to health and safety as required by Section 57A(1)(c). There was no suggestion that the manufacture or supply of this product was harmful or potentially harmful to the respondent's own employees or visitors. There was nothing unsafe about the product and the applicant's concern was that it might be used for an improper purpose."

It is true that they went on to say that they thought that the section was connected solely with matters of safety at work and the workplace but that was not essential to the findings which I have read out.

Those findings, it appears to us, are absolutely conclusive and satisfactory findings of fact in the sense that they leave nothing unsaid that ought to be said. The facts, of course, are a matter for the Tribunal, we are concerned only with questions of law. Is there any error of law that we can discover in the findings of fact which I have read? It appears to us that there is no error of law and nothing that has been said by Mr Henderson leads us to the conclusion that these findings are irrational, contrary to law, unsupported by evidence or anything of the sort. The fact is that the Tribunal accepted Mr Denison's evidence and their findings spring from that and, of course, their consideration of the other evidence in the case. It follows that although it is not suggested that Mr Brendon's concern about this chemical is insincere, nonetheless, the grounds which the employers said they proceeded on, namely, lack of capability, were made out to the satisfaction of the Industrial Tribunal. That is to say, not that the Industrial Tribunal had to persuaded of them, but they had to be persuaded that those were the reasons for the dismissal, held in good faith by the employers, and they found that that was so.

In those circumstances there was no possible way in which the Applicant could bring himself within s.57A and, therefore, within the unfair dismissal provisions of the Employment Protection (Consolidation) Act and his application was bound to fail. With regard to the Wages Act claims, as I say, it is now acknowledged that we can do nothing about that and I say no more about that.

In those circumstances and for those reasons we are unanimously of the view that this appeal cannot succeed before us and it is our duty to dismiss it.