Horton v IKEA Ltd [1999] UKEAT 644_98_0101

EAT

Horton v IKEA Ltd

[1999] UKEAT 644_98_0101 · 1999-01-01

JUDGE C SMITH QC :

We had to consider whether we allow leave to proceed to a full hearing of an appeal by the Applicant before the Industrial Tribunal, Mr Horton, against the decision of a full Industrial Tribunal held at London (North) over a four-day hearing in October 1997 and February 1998, of which Extended Reasons were given to the parties on 10 March 1998.

The decision of the Industrial Tribunal was that the Applicant's dismissal was not unfair under the provisions of the Employment Rights Act 1996 , sections 100 (1) (c) (ii) and 100 (1) (e). Those are complicated and important sections, which give rise to a right to automatic unfair dismissal, if the employee who is dismissed can establish that the reason for the dismissal is, putting it very briefly, one of the various factors set out in sub-sections (a) to (e) of section 100.

The Industrial Tribunal decided that the claim failed under section 100 (1) (c) (ii) by virtue of their finding that it was reasonably practicable for the Applicant employee to have raised certain complaints he had with the Health and Safety Committee and, in our judgment, that was a finding of fact which the Industrial Tribunal were entitled to make and that defeated his claim under section 100 (1) (c). We do not allow leave to appeal against that finding.

However, with regard to the position under section 101 (e) the Industrial Tribunal, having recorded at paragraph 4, the rather extraordinary evidence of the Fire Officer Golding to the effect that, apart from routine visits, on a specific visit on 26 September that officer considered that what he saw relating to the Customer Call Centre at this very large timber centre constituted circumstances of danger which were both serious and imminent. In answer to questions from the Respondent's solicitor, he stated that "on a scale of 1 to 10 he thought that the situation would have scored 10".

In the light of that remarkable finding of fact, it is not surprising that the Industrial Tribunal went on to find that the first part of paragraph (e) was proved, namely that there were circumstances of danger which the Applicant employee reasonably believed to be serious and imminent. But then, the Industrial Tribunal went on to find that the Applicant had not taken appropriate steps, first of all on the basis that all he had done was taken photographs. Now that may, with great respect, be wrong because it does appear that the Chairman has accepted that she may have been mistaken in saying that the Applicant had taken photographs of that particular situation and so that may not at all be a ground for categorising the steps he took as inappropriate and then the Industrial Tribunal went on to say this:

"... nor is it appropriate to report the matter to the fire officer, since in our view 'appropriate' means actions to deal there and then with the actual danger, e.g. to remove people from the danger and to report to the security manager or to dial 999."

With great respect, we think that is arguably not correct although, of course, it is entirely a matter for a full Employment Appeal Tribunal to consider what, in the particular circumstances of this particular case, were appropriate steps. What the Applicant in fact did was to get in touch first of all with the local Fire Brigade and then the Area Head Office Fire Brigade by telephone, as a matter of urgency, and it is our provisional view that that may well be unarguably an appropriate step.

So that, on that basis alone, we allow the matter to go forward. We note in allowing the matter to go forward on that one ground of appeal that, as Miss Chudleigh put it to us, the Industrial Tribunal then stopped short of making any findings at all relating to causation. We would have thought it important that the Industrial Tribunal should have made findings relating to causation, particularly in circumstances where, in paragraph 8, they are highly critical of the way in which the Applicant came to be dismissed a few days later, saying:

" ... there was no proper investigation and no proper disciplinary procedures, and that it is doubtful whether a Tribunal would have found it to be reasonable ... to dismiss the Applicant [on the alleged grounds of misconduct]. "

One would have thought perhaps, that it would have been appropriate for the Industrial Tribunal to deal with the issue of causation, with great respect, although once again that must be a matter for the full Employment Appeal Tribunal to consider, as it is part and parcel of the claim under section 100 (1) (e).

So we give leave on that ground alone for this matter to proceed to a hearing. We specifically do not allow the matter to go forwar on section 100 (1) (c) (ii) which we have already dealt with in this judgment, and also we do not allow the matter to go forward in any way based on any allegation of bias, or let alone misconduct, on the part of the Tribunal.

We very carefully considered all the material placed in front of us in that latter regard. The Chairman of the Industrial Tribunal had the usual difficulty of trying to keep a hearing within bounds when dealing with a litigant in person, who had to present a complicated case of law and fact, and we are quite satisfied that nothing that has been placed before us, in any way indicates that any kind of a case to answer, if we may put it in that rather simplistic way, with regard to bias and putting it more technically, that there is absolutely no ground for believing that there is any arguable ground of appeal based on any actual or apparent bias, let alone improper conduct, on the part of the Chairman.

In those circumstances, therefore, we would have thought that this is properly put into Category C, half a day, with no need for any notes of evidence. Skeleton arguments to be exchanged 28 days before the hearing of the full appeal and, if there is to be a bundle of documentation placed before the Employment Appeal Tribunal of all relevant documents, which were in front of the Industrial Tribunal, then that should be an agreed bundle to be agreed 28 days before the hearing of the appeal.