MR A JENNINGS v H & P FREIGHTWAY LTD [1999] UKEAT 636_99_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 636_99_2109Case No Appeal No. EAT/636/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A JENNINGSAPPELLANTH & P FREIGHTWAY LTDRESPONDENT
Before
His Honour Judge J HicksDate 21 September 1999
[1]APPEARANCES For the Appellant MR J FALKENSTEIN (of Counsel) Messrs Newbys 100 Borough Road Middlesbrough TS1 2HJ JUDGE J HICKS QC : The Appellant, Mr Jennings, was employed by the Respondent, H & P Freightway Ltd, as a heavy goods vehicle driver working out of Teesport, at which base there were three vehicles and three drivers and an operations manager called Mr Tyreman. The total staff of the employers was some 95 employees and they had a substantial haulage business, which included the acceptance of hazardous loads and the taking of the necessary precautions and compliance with all safety requirements in connection with that sort of business. They and Mr Jennings were also, of course, subject to regulations about driving hours.[2]Mr Jennings was dismissed for refusing to accept an instruction to do a particular piece of work. That arose in this way. On 27 November 1998 he was driving a load to Hull when he received a call from Mr Tyreman at Dewsbury, telling him that there would be a job for him at ICI the next morning, which was a Saturday. Mr Jennings said that he was still loading and could well finish late but Mr Tyreman was insistent that this ICI job had to be accepted.[3]Mr Jennings completed loading, drove to Hull, unloaded, then went to the employer's Hull Depot and had finished by 9.00 pm, spent the night in the bunk which was provided in his cab and had, he told the Tribunal, a disturbed night because of weather conditions. His rest period that night, 9.00 pm to 7.00 am, was within the regulations. When he got up in the morning he did various things until 9.20 pm, when he left the Hull Depot, from which he proceeded to Teesport, arriving at 12.10. There was then a confrontation with Mr Tyreman at which he was again instructed to proceed to ICI but refused and was summarily dismissed.[4]He alleges unfair dismissal and the matter was dealt with before the Employment Tribunal on the basis that the unfairness consisted of unfairness arising under section 100 of the Employment Rights Act 1996, which provides by subsection (1) that:
"An employee who is dismissed shall be regarded for the purposes of this Part [of the Act] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that - ..."
And then there are a number of possibilities of which (c), (d) and (e) are that:
"(c) being an employee at a place where – (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he 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, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (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."
[5]One of the proposed grounds of appeal by an amended Notice is that the Tribunal failed to consider head (c) of section 100 subsection (1). We dispose of that first because it is quite clear, as we understand it, that no case based on that head was put to the Tribunal and, in our view, there can be therefore no error of law on their part in failing to address it. It is in any case, as we understand it, concerned with the situation where the reason for the dismissal is the employee's bringing matters of safety and health to the attention of the employer, whereas there is now no doubt whatsoever that in this case what precipitated the dismissal was the simple refusal to obey an order. The Tribunal cited and dealt with heads (d) and (e), which were the relevant heads for that purpose.[6]The other grounds of appeal centre on the way in which the Tribunal did so. In paragraph 4 of the Tribunal's Extended Reasons, having set out the facts, the Tribunal summarises the submissions on Mr Jennings' part as follows:
"4 On behalf of the applicant, Mr Hards [his Solicitor, we understand] submitted that this was a case which fell within section 100 of the Employment Rights Act 1996 and that the applicant was too tired, having had a long week, disturbed night and a draining journey back from Hull. The job at ICI would involve hazardous materials and the applicant could not properly deal with the job. He was therefore being dismissed because of his refusal, which was a reasonable refusal on health and safety grounds, not to do the job. "
[7]That, as we understand it, means that Mr Hards was putting the case under section 100 subsection (1) (whether head (d) or (e) is for this purpose immaterial) in two ways. First, that there was a danger arising from the Applicant's tiredness in all the circumstances in carrying on driving and, secondly, that the job at ICI would involve hazardous materials. The Tribunal deal with the matter in this way, in paragraph 7 of their Reasons:
"7 It had been raised with the applicant what precisely was his reason for refusing to undertake the job at ICI on Saturday 28 November. Was it because he considered that his legal working hours were being exceeded or his rest periods legally inadequate, or was it because he was too tired and he felt that it was too much of a risk? He made it clear that his reason for refusing the job was because he was too tired and he felt it was a danger for him to undertake this. Accordingly, and this was confirmed by the Tribunal's own consideration of the tachograph records and other related evidence, there was no basis for the refusal related to the Drivers' Hours Regulations. With regard to the question of whether the case fell within sub-sections (d) or (e) in relation to danger, the Tribunal did not consider that there was evidence that the applicant was in a situation where he reasonably believed himself to be in serious and imminent danger by performing the work task. In order for the applicant to have had such a reasonable belief in serious and imminent danger, it would have been necessary for him to know precisely what the job was which he was being required to undertake. He had not made any reasonable enquiries with regard to the circumstances of the job …"
[8]In the second part of that passage it seems to us clear that the Tribunal is addressing the question put to it in Mr Hard's submissions that the job at ICI would involve hazardous materials and finding that the Applicant could not have entertained a reasonable belief of serious and imminent danger because he had not even enquired what the nature of the load was, and we see no error in that approach. But in the earlier part of the passage which I have just read, in so far as the Tribunal is addressing the question whether Mr Jennings' tiredness produced a circumstance of danger and whether he reasonably believed that danger to be serious and imminent, we consider it arguable that the Tribunal did not address the issues which should have been addressed, because they say, "there was no basis for the refusal related to the Drivers' Hours Regulations". That seems to be, by implication, a decision that there cannot be any danger arising from tiredness if the Regulations had been complied with and a neglect to consider for themselves whether they, the Tribunal, found circumstances of danger on the one hand and, secondly, whether they found a reasonable belief by the employee that those circumstances of danger were serious and imminent. On that basis, and on that basis alone, we consider that there is a ground of appeal which should be argued without, of course, expressing any view as to its merits beyond that finding of arguability. We accordingly direct that the appeal proceed on that footing alone.[9]It would probably be wise for the Notice of Appeal to be amended so as to reflect that fact and so we direct that within 14 days the Appellant file and serve an amended Notice of Appeal conforming to the reasons which we have given in our decision.[10]We direct that the Chairman's note of the Applicant's final address be furnished. This is a Category 'C' case and is to be listed for half a day and skeleton arguments should be filed and served 7 days before the hearing.