Tedeschi v Hosiden Besson Ltd [1996] UKEAT 959_95_0210

EAT
Tedeschi v Hosiden Besson Ltd
[1996] UKEAT 959_95_0210 · 1996-10-02

JUDGE HICKS QC :

Mr Tedeschi was employed by Hosiden Besson Limited as one of some 550 employees in the business of manufacturing and assembling components and accessories for car telephones and television and other electrical goods.At the time of his dismissal he had been employed for less than two years, and was therefore not within the protection of the Employment Protection (Consolidation) Act 1978 , under the general provisions which give redress for unfair dismissal.He was dismissed, and claimed before the Industrial Tribunal that notwithstanding the fact that he had been employed for less than two years he was nevertheless entitled to compensation if the tribunal found in his favour on the allegations he made, which were based on certain provisions of the Act which relate to health and safety.The statutory provisions can be followed through in the way that Mr Linden helpfully led us by starting with Section 54(1), which I need not read, but which is the general statutory right not to be unfairly dismissed. Then if one turns to Section 57(1) there is a provision which is of some importance because of a particular point which arises later about the burden of proof, and it reads as follows:
"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show- (a) what was the reason for the dismissal; [ and further provisions which follow on that. ] ..."
Section 64(1) is the section of which I have already summarised the effect, which requires continuous employment for not less than two years in most cases before the general application of Section 54 can take effect, but subsection (3) provides the exception on which Mr Tedeschi relied and relies in this case. It reads as follows:
" (3) Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal, ... was an inadmissible reason."
Then there is a reference in subsection (4) to the definition of "inadmissible" which goes back to Section 57A(1),(2) and (3) and other provisions. Section 57A(1) is the one which is relevant in this case and it 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 is a set of paragraphs (a), (b), (c), (d) and (e) of which the relevant one here is (c)(ii) ]: (c) being an employee at a place where-(ii) there was such a representative or safety committee [ which has already been referred to ] 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 heath or safety."If one analyses that slightly scattered provision, one can list four requirements to bring a dismissal within this particular category of inadmissible reasons. The first, working backwards, is that the employee reasonably believes that circumstances connected with his work are harmful or potentially harmful to health or safety. Secondly, that it is not reasonably practicable for the employee to raise the matter through a representative or safety committee. Thirdly, that in the circumstances where he cannot do it through a representative or safety committee he has done it by reasonable means. Fourthly, that the fact that he has raised it is the reason or the principal reason why the employee has been dismissed.In the present case - and we shall have to come back to the detail of this, but it is convenient to dispose of those four points, as it were, and see how the Industrial Tribunal found them - the Industrial Tribunal found that although Mr Tedeschi had a belief that there were circumstances connected with his work which were harmful or potentially harmful to health or safety, that belief was not reasonable, and he did not therefore reasonably believe, although he did believe it, so they found that element against Mr Tedeschi. They found in his favour that although there was a safety representative, it was not reasonably practicable for him to raise the matter through the representative. They also found in his favour that in the circumstances he adopted reasonable means to raise the complaint. Then finally, in the order in which I am considering them, although first in the Industrial Tribunal's reasons, they found it impossible to extricate the health and safety issues from the other complaints against the applicant, and so on the face of it they made no finding as to whether it was or was not the principal reason for his dismissal. They plainly did not find that it was the only reason, and as I have said - although we shall have to come back to this in more detail - they do not seem on the face of it to have made a finding as to whether it was the principal reason.Certainly because of their finding that his belief was not a reasonable one, and perhaps also because they found this was not the principal reason, they dismissed his application, and it is from that decision that he appeals.Our jurisdiction is limited to deciding whether the tribunal, in reaching the decision and decisions that they did, fell into any error of law. Mr Tedeschi, who has conducted his own appeal and who is not legally qualified, has conducted that appeal largely by reference to the amended grounds of appeal, which clearly were drafted or settled by a legally qualified person, and that is indeed a helpful way of dealing with the matter, to look at the reasons set out in those amended grounds as supplemented by what Mr Tedeschi said in his oral submissions.So far as the question of the principal reason for the dismissal is concerned Mr Tedeschi points primarily to the words of the tribunal's finding on the point, and having previously referred to them by way of general summary I must now read them, because the exact way in which they put it is crucial to this issue. They say that they find in paragraph 12:
"i) That it was impossible to extricate the health and safety issue from the other complaints against the Applicant. It was health and safety that brought him to management's attention and while his slow work rate may have been a major factor in his dismissal his complaints about health and safety have to have made a contribution."
It is said in various ways in the amended grounds of appeal, and maintained by Mr Tedeschi in his submissions, that there simply is no finding that his complaints about health and safety were the principal reason for his dismissal, rather there is an abdication by the Industrial Tribunal of the duty of reaching a finding on that point.It is convenient to turn to Mr Linden's submissions in response, because there is very little that can be said by way of elaboration of the appellant's argument on the point. Mr Linden's first submission is that on this issue the burden of proof is on the appellant, and he points to the contrast between the phraseology of Section 57(1) - that it is for the employer to show what was the reason for the dismissal, and that it was a reason such as to justify the dismissal - with the language and phraseology of Section 64(3), which provides effectively that the two year requirement "shall not apply to the dismissal of an employee if it is shown that the reason (or if more than one the principal reason) for the dismissal or, ... was an inadmissible reason." On the face of it that contrast, Mr Linden submits, shows that the burden of showing that the reason was an inadmissible reason, in this case what one might broadly call a health and safety reason, is on the employee. Whether we should or should not have acceded to that submission as a matter of unguided statutory construction we need not say, because Mr Linden submits that we are bound by the authority of a decision of the Court of Appeal to accept that view, and we have come to the conclusion that that submission is well-founded. The case is that of Smith v Hayle Town Council [1978] ICR 996 . It was a case where the reason was not concerned with health and safety, but with trade union activities, but Mr Linden rightly submits that on this point the phraseology is identical. It is equally true that in Smith v Hayle Town Council the Court of Appeal was dealing with earlier legislation, but again that is not a ground for distinguishing it because the point at issue and the statutory phraseology that was in question has, for this purpose, been repeated verbatim. It is not necessary to read the passage in which Eveleigh LJ, with whom Sir David Cairns agreed against the dissent of Lord Denning MR, came to that conclusion; it is quite plain that that is the conclusion which they, the majority of the Court of Appeal reached, and we accept that that decision is binding on us, and that therefore the burden is on the employee to show that in cases such as the present a health and safety reason is the principal reason for the dismissal, specifically a complaint by the employee about health and safety.That being so we return to the question whether the tribunal, in the passage which I have read has, as Mr Linden submits, tacitly made a finding that Mr Tedeschi has not discharged the burden on him of showing that this was the principal reason. Mr Linden accepts, very fairly and in our view rightly, that there is a distinction between abdication of the responsibility of addressing a relevant issue of fact on the one hand, which is an error of law, and the situation that he submits pertains here where the question has been addressed and has been resolved on the basis of applying the onus of proof. That being so, we have no doubt that this case falls within the former category of a case where the duty of addressing the issue of what was the principal reason simply has not been satisfactorily faced. To say that it is impossible to extricate one issue from another, to review the facts in such terms as "may have been a major factor", and "have to have made a contribution", two of the elements which went into the decision, is not to reach a conclusion about what was the principal reason. Nor is it, in our view, fairly to be construed - even adopting the approach of not being over-critical of the exact words of the tribunal's reasons - it is not fairly to be construed as meaning "we have considered the issue of what was the principal reason, we are not able to come to a decision on the evidence firmly one way or the other, whether health and safety was the principal reason, and therefore since the onus of establishing that it was the principal reason is on the applicant, we find that he has not discharged it". The words in our view simply do not bear that construction; they rather bear the construction that the tribunal makes no finding on the question whether health and safety was the principal reason.Mr Linden says that if that is the conclusion that does not dispose of this appeal, because although on that view there would an error in law the applicant has to deal with all four of the requirements which I have earlier listed and which the tribunal separately address, so that if the fourth of those, in the order in which the tribunal dealt with them - the question of reasonable belief - shows no error on their part that ground alone, regardless of what view they took about the "principal reason" point, would mean that their decision can only be upheld.We turn therefore to that issue of reasonable belief. This, we think, is helpfully dealt with under the headings in which the amended Notice of Appeal gives what it describes as particulars under ground C, which is one of the grounds connected with this point. That set of particulars looks in turn at four reasons which are identified as being given by the Industrial Tribunal for its conclusion on this point. We think that those four reasons are accurately identified, although it is only fair to the tribunal to say that there does seem to be a fifth, and that is one on which Mr Linden relies. So we shall deal with the fifth as well as with the four that are identified in the amended Notice of Appeal.I shall first read the whole of paragraph 12 iv) of the tribunal's reasons, in which they deal with the whole of this point, and then come back to the criticisms point by point. They say:
"iv) The last statutory requirement is that the Applicant should have reasonable belief in his complaint. The Tribunal, as indicated above, are not in a position to draw a technical conclusion from the evidence before them, it accepts, however, that the handling of lead is a serious matter but they also have to take account of the fact that the Applicant refused to be moved from the soldering task in spite of his complaints. He gave evidence to the effect that he had been to see his doctor who had advised him not to do the work, but he had not drawn that advice to the attention of his employer and had continued to work. Taking all of the evidence into account including the letter of the 9th December 1994 and the pamphlet produced by the Applicant which, the Applicant confirmed to the Tribunal, had been formulated in his mind before he was dismissed the Tribunal take the view that the Applicant's attitude was one of near obsession rather than reasonable belief. The employers had attempted to allay his fears, but he was not prepared to listen to any reasonable argument at all."
I should, before coming to the criticisms of that, briefly refer to some of the salient history which I have not dealt with in any detail before.Mr Tedeschi, as the tribunal found, had first been employed on an assembly line task, and the person to whom he was immediately responsible, a Mrs Sally Bacon, clearly formed the view that he was not performing adequately and spoke to him about it. He at that point wrote the letter of 9th December 1994 to which the tribunal refer, and which said among other things that the muscular and emotional effort required was beginning to overpower his will and physical strength, and that the task was running him down and he did not know how long he could physically last. He sets out a number of facts about his qualifications and experience which suggest, he says in the letter, that he could be of better use elsewhere in the company. Mrs Bacon then acceded to his request for a move, although not perhaps in the direction which he had hoped for, and made arrangements for him to change to soldering. That seems to have happened very shortly after the letter of 9th December, although no date is given in the tribunal's reasons and findings of fact.About a week after he had moved she spoke to him again and he then expressed his concern about health and safety, which centred on the adequacy of the provisions for the extraction of solder fumes. It is not, as we understand it, in dispute, and never was, that there is a potential hazard to health and safety from the fumes given off in the soldering process, and indeed the employers had in place extraction machinery which was designed to meet that point, so that the employee's complaint in essence was, and this does not seem to be in dispute, that those extraction methods were inadequate or were not working effectively, so that a health and safety problem remained. That concern of his was continued and repeated; that fact is beyond dispute and common ground.A superior manager, Mr Farmer, became involved, and on 4th January 1995 met Mr Tedeschi and explained to Mr Tedeschi what the extraction procedures were, but Mr Tedeschi was not prepared to accept that they were adequate. Mr Farmer then arranged for him to be moved off soldering that night, in other words right away, and put on packing. The tribunal then refer to evidence, on which they make no finding one way or the other, as to whether Mr Tedeschi did or did not after that try to persuade his replacement on the soldering job that the job was unsafe and that he should not do it.That then, briefly, is the factual background to this issue.The tribunal nowhere in the passage which I have read, and as we understand it nowhere in their reasons, doubt Mr Tedeschi's belief in the complaints which he was making. So the question is as to the reasonableness of that belief. The first reason which they give is that he refused to be moved from the soldering task in spite of his complaints. The criticism that is made of that, and we think with force, is that that is thrown into paragraph 12 iv), which is really not concerned with the finding of primary facts but with the conclusions from those primary facts as to the four matters about which the tribunal has to reach a conclusion if the dismissal is to be unfair. That reference to his refusal to be moved is simply thrown in there without any foundation in the recital of the history of the case, and of the primary facts and the evidence on which those findings are based. The passage dealing with the move from soldering is confined to the one which I have already summarised and which to use the exact words of the tribunal reads as follows:
"Mr Farmer offered him a move and told him that he would obtain further information from the Safety Officer. Mr Farm arranged for him to be moved off soldering that night and put on packing. Mrs Bacon reported that having been moved from soldering onto packing Mr Tedeschi sought to persuade the operator who was moved onto soldering not to do the job because it was unsafe, the Applicant in evidence denied this."
It is perfectly true, as Mr Linden pointed out, that there had been evidence of an earlier invitation to Mr Tedeschi, on the part (I think) of Mrs Bacon, to do other work if he disliked the soldering conditions, and of his refusal. There was another piece of evidence bearing on that to the same effect. But despite the fact that there was evidence on which the tribunal could have made a finding on that point the fact remains, in our judgment and understanding of their reasons, that they did not do so, otherwise than by this reference in paragraph 12 subparagraph iv), where, as it seems to us, on any fair reading of what they say, they are not purporting to make the finding, but to refer to it as if it had already been made when it had not, and without any consideration of the evidence for or against it. In our view therefore that criticism is made out, that this reason for finding that Mr Tedeschi's belief was not a reasonable one is not based on any adequate finding of the necessary facts.The second ground which the tribunal give for their conclusion is that Mr Tedeschi gave evidence that he had been to see his doctor, who had advised him not to do work, but that he, Mr Tedeschi, as the tribunal found, had not drawn that advice to the attention of his employer and had continued to work.The difficulty with that as a reason for the tribunal's conclusion, in our view, is as follows. First of all they recite Mr Tedeschi's evidence that he had been to see his doctor and advised him not to do the work, but they make no finding one way or the other as to whether they accepted that evidence. If they accepted that evidence, then the fact that he had indeed been to see his doctor, who had indeed advised him not to do the work, must on any view be a ground in support of the reasonableness of his belief, rather than against it. If, on the other hand, they disbelieved that evidence, and for that purpose took into account his failure to mention it to his employers, so that what they were saying should be understood as being "Mr Tedeschi told us that he went to his doctor, but if he went to his doctor why did he not tell the employers, therefore, we do not believe he went to his doctor", first of all they ought to have made an explicit finding to that effect, but secondly if they had made a finding to that effect that would have gone not so much to the reasonableness of his belief as to whether it was a genuine belief. And, as I have said, it is implicit in the whole of this subparagraph that it is the reasonableness, not the genuineness, of the belief that they find against Mr Tedeschi. We therefore think that ground of criticism of their reasons is also made out in two separate ways. First, that it is not founded on any adequate finding of fact; indeed no relevant finding of fact is made. Secondly, that whichever way the finding of fact had gone, it could not certainly have been a consideration of any great weight, and perhaps not a proper consideration at all, in favour of the conclusion that the belief was not reasonable.The third ground which they state they are taking into account is the letter of 9th December 1994, I have summarised that. It was of course a letter written before Mr Tedeschi had begun soldering work and before he had made any complaints about the health and safety aspects of that work. Therefore one asks oneself on what basis is the tribunal taking this into account in assessing the reasonableness of his belief that there were dangers to health and safety or considerations of health and safety in relation to his soldering work. The only way in which it seems to us they might have been taking it into account is that it might have been relevant to an issue whether Mr Tedeschi's complaints about health and safety were genuine, or whether he was not, as the employers may have believed and may indeed have been suggesting to the tribunal, somebody who was disinclined to do manual work of any kind, because he thought that he was qualified for senior and more comfortable modes of employment. But, if that was the line that the tribunal was taking, then again that would have gone to the genuineness of Mr Tedeschi's complaint, not to its reasonableness. Genuineness is not a matter that the tribunal question; indeed, the way in which they put it, that he had a "near obsession" in the matter, rather strongly implies that it was very genuine indeed, but in their view irrational.Lastly, of these four reasons criticised in the Notice of Appeal, the tribunal refer to the pamphlet which Mr Tedeschi produced. That is a document which he circulated; it would seem from the tribunal's reference to the fact that he had formulated it before his dismissal that he actually circulated it afterwards. It is a typed document, but at the head there is a manuscript indication that Mr Tedeschi gave a copy of it to the employers in advance of distribution, and he says "I am going to distribute this leaflet to the day workers on Monday morning. You can stop me by talking to me before then." Then there is a reference to the health risk of solder fumes, a reference to the balance as it were between the money which the employees were earning on the one hand and the potential cost of ill health, or damage to health, from such fumes, an allegation that the management do not seem to think that there is a health hazard, and a request for information as to whether his fellow employees have noticed what he called "negative effects deriving from the inhalation of these flux fumes" . It is not couched in inflammatory language by any means, and we are somewhat at a loss as to the tribunal's reasons for supposing that that reflects upon the reasonableness of Mr Tedeschi's belief. Again, there seems to be confusion between reasonableness and genuineness. The fact that a person entertains a belief so strongly that he wishes to protect his fellow employees as well as himself, or that he takes the matter so seriously that he wishes to investigate whether what he believes to be his own symptoms are shared by others or are not, seems to show first of all that his belief was indeed a genuine one, and secondly in so far as it is canvassing the extent to which other people have the same symptoms, it tends to show reasonableness rather than otherwise, because if there was absolutely no response, on the face of it it shows a willingness to take that into account. This also therefore seems to us not to be a ground for the conclusion which the tribunal reach.Those are the four grounds which are criticised by the Notice of Appeal. Mr Linden, perfectly fairly and properly, drew our attention to the last sentence of paragraph 12 subparagraph iv), in which the tribunal say "The employers had attempted to allay his fears" - and there had been findings of fact which went to support that, and they go on - "but he was not prepared to listen to any reasonable argument at all." That sentence, we accept, did go to the reasonableness of the belief and was a factor which the tribunal was entitled to take into account. But if of five reasons which the tribunal gives for a conclusion four are erroneous in law, for the reasons which we have explained, then it is quite impossible for us to have any assurance that this tribunal or any tribunal taking into account only the one which bears examination would have found it sufficient of itself, or that the conclusion was not affected by the other four which we find to be faulty.For those reasons we have come to the conclusion that the tribunal erred in law in their approach to the question whether Mr Tedeschi had a reasonable belief in his complaint, and that in the face of that error this is not a case where we are able to conclude that despite it any reasonable tribunal would inevitably have come to the same conclusion. It is clear that we are not able on the contrary to come to the conclusion that any reasonable tribunal must have found in Mr Tedeschi's favour, and therefore this is a case where there is no alternative but to allow the appeal and remit the application to the Industrial Tribunal. I say "the Industrial Tribunal" without prejudice to the issue whether it should be constituted of the same persons as at the original hearing. Mr Tedeschi has submitted that the appropriate course would be to remit to a newly constituted tribunal, but we have not asked Mr Linden for his submissions on that, because of the point at which the adjournment was taken.

[Submissions from Mr Linden]

JUDGE HICKS QC :

Both Mr Linden and Mr Tedeschi invite us to remit to a differently constituted tribunal, which will inevitably entail that the hearing will have to be completely afresh, and the evidence heard afresh, because the new tribunal will not have heard any of the evidence. That is not a course to be taken lightly, because of the extra time and expense which will be involved, but quite apart from the fact that we are invited to do it by both parties that is the conclusion to which we ourselves had independently come, so that will be the order.