Rear Admiral T J England v Hampshire County Council [1997] UKEAT 822_97_1010

EAT

Rear Admiral T J England v Hampshire County Council

[1997] UKEAT 822_97_1010 · 1997-10-10

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing was to determine whether the Applicant and prospective Appellant has any arguable point of law in relation to his appeal against an Industrial Tribunal decision which was held at Southampton between 18 February 1997 and 2 April 1997.

By that decision the Tribunal concluded that the Applicant was not dismissed for a reason connected with health and safety, that he was dismissed by reason of conduct and, therefore, as he did not have two years' continuous employment, the Tribunal did not have jurisdiction to deal with his complaint.

The notice of appeal is somewhat lengthy and, I have to say, rather more lengthy than we like but, essentially, the points which we consider to be arguable and fit for hearing before the EAT can be summarized in this way.

Firstly, the Industrial Tribunal's decision must be looked at in the context of a previous decision of an industrial tribunal at Southampton. There the decision is stated to be a decision on a preliminary point and the decision was as follows:

1. The dismissal was connected with Health and Safety matters.

2. The Tribunal had jurisdiction to hear the application.

3. Leave to amend was given and consequential directions made.

That was a decision which was arrived at by an Industrial Tribunal Chairman sitting on his own on 20 December 1996 and he set out in an extensive judgment the reasons why he arrived at his conclusions. That decision runs to 32 paragraphs. In the course of it he came to the conclusion that there was a clear Health and Safety issue which played a major part in the actions of the Applicant and in paragraph 29 the Chairman said:

"However, I have to try and look at this matter in a logical manner, and look to see what the overall situation would have been, and I am satisfied in this case as I have said, that there was a health and safety issue surrounding all of this issue, certainly from the moment of the written warning being given.

30. In these circumstances, as I find, that this issue surrounds a health and safety issue and that the dismissal, I consider was tainted with that health and safety issue, this matter will go forward to a full hearing and I hold that there is jurisdiction for a Tribunal to hear this matter, despite the fact that the applicant did not have two years continuous service."

It follows, therefore, as we understand it, that the Industrial Tribunal had concluded that the reason, or one of the reasons, for the dismissal was a health and safety issue, otherwise the Tribunal would not have jurisdiction to consider the case, so that when the matter went before the Industrial Tribunal on 18 February 1997, as the Applicant has submitted to us, he believed that that question was no longer a live one. It seems to us that it is distinctly arguable that the Industrial Tribunal's procedure in this case was inappropriate. It is arguable that the Industrial Tribunal should not have sought to separate out the question of the reason for the dismissal in the way that it has done in this case. That is a point of law of importance, which should be argued.

The second matter is this: if one looks at the second decision of the Industrial Tribunal, it seems to us reasonably arguable that they did not satisfactorily deal with what they identify in paragraph 6 as the health and safety issue. The argument for the Appellant is that although they may have identified the issue in paragraph 6, they have not set out adequately so that he knows why he has lost, their reasons for rejecting the health and safety issue in paragraphs 23 and 24 of their decision.

And the third point, which is related to the second, is that after the second decision of the Tribunal, the Appellant asked for a review. Initially, the Tribunal simply dismissed his application for a review but there was a request from the Regional Chairman that a rather fuller explanation should be given for why the application for the review should be dismissed. Paragraph 3 of that decision says this:

"The Applicant criticises the wording of paragraph 6 of our Extended Reasons. The main point of this paragraph is that the meeting on which he lays such importance was put off, as a result of his protestations."

The Applicant tells us today that that represents a misunderstanding of the evidence and that there is documentary evidence, as I understand it, that the meeting was not put off.

If that is correct, then the Appellant says that he has an additional point to make, which is that the Tribunal never correctly understood what was a key part of his case on health and safety. We consider that point also to be reasonably arguable and those are the three issues which should go forward for a full hearing.

In relation to the consequential directions which we give for the hearing of this appeal, we can say that we consider that this appeal is likely to occupy three-quarters of a day. We list it is category A, because it seems to me that the question of the approach of the Industrial Tribunal is important. We do not think that the notice of appeal needs to be amended because of the judgment which will be available to the parties. We think that notes of evidence on that issue only that I have identified should be required, namely, any evidence that the Chairman has noted to the effect that the meeting to which reference is made in paragraph 3 was put off as a result of the Applicants protestations.