Masiak v City Restaurants (UK) Ltd [1998] UKEAT 683_97_2906

EAT
Masiak v City Restaurants (UK) Ltd
[1998] UKEAT 683_97_2906 · 1998-06-29

JUDGE PETER CLARK :

This is an appeal by Mr Masiak against a decision of the Bedford Industrial Tribunal, dismissing his complaints of breach of contract and unfair dismissal. A third complaint of unauthorised deductions from wages was dismissed on withdrawal and does not form part of this appeal. The Industrial Tribunal's Decision with Extended Reasons was promulgated on 4 June 1997.The Appellant was employed by the Respondent from 15 July until 16 August 1996. The factual background set out by the Industrial Tribunal, without hearing evidence, was that shortly after 4.00 pm, on 16 August when the Applicant commenced employment as a line chef he became aware that there were some boxes of chicken defrosting in the kitchen and formed the view that they would not be ready for serving that evening. He then telephoned the Environmental Health Officer to report his concern and also spoke to his manager saying that the chicken should be removed from the menu that evening as it would be a potential health hazard.The Tribunal record that it was common ground between the parties that there was a supply of chicken which was properly thawed and relatively cooked and that they anticipated commencement of time for service would be at 7.00 pm, but the Appellant formed the view that the chicken which he conceded was properly available for service would not be adequate for the number of dishes likely to be required in the course of the evening, a view with which management apparently did not agree.It was said to be also common ground between the parties that shortly after this the Appellant left the premises, although he says that he was told either to cook the food for consumption by customers or to go home, and it was the Respondent's case that when he was told that he should use the chicken which was fully thawed he said that he was not prepared to work because he would be legally responsible and that he would either take the evening off or work in accordance with the directions of the employers.By their Notice of Appearance the Respondent took the point that the Appellant was not, as he had alleged, dismissed by them. However, on the basis of the pleadings the Tribunal took the following points, we are told by Mr Pinder, of its own motion.(1) the Appellant's claim for breach of contract, that is, damages for wrongful dismissal at common law, failed because the Appellant did not have the requisite period of employment to entitle him to any statutory notice period - see paragraph 16 of the Reasons.Dealing with that point we accept Mr Pinder's submission that no period of continuous employment is required for the common law claim of damages for wrongful dismissal. The Industrial Tribunal has jurisdiction to consider such a claim under section 3 (2) of the Industrial Tribunals Act 1996. At common law every employee is entitled to reasonable notice of termination; that is a term to be implied into each contract of employment in the absence of any express term as to notice. Statute provides for a minimum period of notice; in this case, one week's notice - see section 86 (1) (a) of the Employment Rights Act 1996 . Accordingly the Industrial Tribunal misdirected itself in law in holding that the wrongful dismissal claim failed for lack of service.(2) that the unfair dismissal claim, put on the basis of the inadmissible reason for dismissal contained in section 100 (1) (e) of the Employment Rights Act failed because the expression "other persons" in that provision related only to employees and not to members of the public. Having considered the Industrial Tribunal's reasoning at paragraphs 6 - 12 we have again concluded that the Tribunal fell into error.Section 100 (1) (e) of the Employment Rights Act was originally enacted in the Trade Union Reform and Employment Rights Act 1993 . It was designed to put into domestic law the relevant provisions of EC Directive 89/391. The Industrial Tribunal refer to Article 1 of the Directive, but no reference is made in the Reasons to Article 13 which provides, so far as is material:

"(3) Workers' Obligations - Article 13

1. It shall be the responsibility of each worker to take care as far as possible of his own safety and health and that of other persons affected by his acts or commissions at work in accordance with his training and the instructions given by his employer.2. To this end, workers must in particular, in accordance with their training and the instructions given by their employer -(d) immediately inform the employer and/or the workers with specific responsibility for the safety and health of workers of any work situation they have reasonable grounds for considering represents a serious and immediate danger to safety and health and of any shortcomings in the protection arrangements."In that context, section 100 (1) (e) reads:

"100 Health and safety cases

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that -(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."It seems to us, as a matter of pure construction, that neither the Directive nor section 100 (1) (e) of the Act seeks to limit the class of persons at risk of danger to those employed by the employer. Had that been the intention of Parliament the Act would have referred to "other persons employed" or "other employees" or even "other workers". In the absence of such limitation we have concluded that the wider construction contended for by Mr Pinder is correct, and we hold that the expression "other persons" contained in section 100 (1) (e) extends to members of the public.Further, we are fortified in our conclusion by the provisions of the Health and Safety at Work Act 1974 which, by section 3 (1) provides:

"3 General duties of employers ... to persons other than their employees

(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."In these circumstances we see nothing in our construction of the words of section 100 (1) (e) such as to create an unwarranted extension of employment protection coming close to an abuse of process, as the Industrial Tribunal suggested in paragraph 14 of their Reasons.(3) The Industrial Tribunal found that the Appellant had failed to show that even if the expression "other persons" in section 100 (1) (e) extended to members of the public, he had not shown that the danger was "serious and imminent".We refer to section 100 (2) of the Act, which provides:
"(2) For the purposes of subsection (1) (e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time."
It seems to us that it is quite impossible for an Industrial Tribunal to determine "all the circumstances" without hearing evidence. To attempt to do so solely on the basis of the pleadings amounts in our view to an error of law.In these circumstances we shall allow the appeal, which is not actively resisted by the Respondent, which has chosen not to appear before us, but makes the point that the real issue so far as they are concerned in this case is whether or not the Appellant was dismissed.We direct that the case be remitted to a fresh Industrial Tribunal for determination of the following questions:

(1) was the Appellant dismissed? if so

(2) does his claim for wrongful dismissal succeed, and if so, what is the measure of damages, and(3) was he dismissed for an inadmissible reason under section 100 (1) (e) of the Employment Rights Act, and if so, to what remedy is he entitled?