MR K M HORTON v IKEA LIMITED [1999] UKEAT 644_98_0112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 644_98_0112Case No Appeal No. EAT/644/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K M HORTONAPPELLANTIKEA LIMITEDRESPONDENT
Before
His Honour Judge D Pugsley Dr D GrievesDate 1 December 1999
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR D GRIFFITH-JONES (of Counsel) Messrs Lovett White Durrant Solicitors 65 Holborn Viaduct London EC1A 2DY JUDGE DAVID PUGSLEY : This is an appeal by Mr K M Horton against a decision of the Industrial Tribunal sitting at London (North). It is perhaps appropriate to say that we have been much assisted in this case by the helpful judgment, at the preliminary stage, of His Honour Judge Smith QC. The only grounds that have been argued before us as having the status of being arguable, are the two grounds set out at page 2 of the EAT bundle:
"(1) The Employment Tribunal erred in law in failing to find that reporting a serious and imminent danger to a fire officer constituted " appropriate steps" for the purpose of section 100(1)(e) of the Employment Rights Act 1996; (2) Further, the Employment Tribunal erred in failing to make any finding as to whether or not the "appropriate steps" taken by the Appellant constituted the reason or the principal reason for the dismissal."
We say that those grounds of appeal have all the hallmarks and the prints of professional drafting. That is indeed the case, because at the preliminary hearing the appellant had the support of Ms Chudleigh who was part of the ELAAS scheme. It is only fair, we say right away, that those are the only issues we have considered. In terms, some of the more florid allegations made by Mr Horton about bias has not surfaced here, quite rightly, because leave was not given.[2]We think it is helpful to say right away that we wholly commend the good sense of the respondents in accepting that as far as the first ground is concerned they accept that that is unarguable on their part. In other words, the respondents do not dispute that the appellant was within the ambit of s.100(1)(e) by reporting the matter to the fire officer and that was an appropriate step within the meaning of that section.[3]The factual background of this case can be easily stated in a few words. Mr Horton was employed by the respondents, IKEA Limited from 27th November 1995 to 9th October 1996. He was a worker in the spares and quality department. The respondents admit dismissing him. They said it was for gross misconduct. Because of his lack of continuity of service a s. 98 unfair dismissal could not be brought before a tribunal. The grounds of Mr Horton's complaint are that he was dismissed contrary to the provision of the Employment Rights Act 1996 , s.100, which deals with a health and safety case. The appellant's evidence, as found by the tribunal was that from the beginning of 1996 he was extremely concerned about the health and safety requirements of the factory generally. His concern has been mirrored by the concern of the industrial members of this tribunal who have fully justified their title as being full members of the tribunal by expressing their concern after some of the evidence that is revealed in the tribunal decision.[4]We deal with one matter. It is this, that at one stage in the tribunal hearing the fire officer, to whom the report was made by Mr Horton, was called to give evidence. That showed that the state of the Customer Call Centre was in such a condition that there were circumstances of danger which were both serious and imminent. In answer to the question from the respondents' solicitor on the scale of risk, he stated on the scale of 1 to 10 he thought the situation would have scored 10.[5]The Industrial Tribunal found that it was not an appropriate step for to get in touch with the local fire brigade. That what should have happened, they say, is that the appellant should in those circumstances have done something "there and then with the actual danger, e.g., to remove people from the danger and to report it to the security manager or to dial 999. We therefore find that Mr Horton is not protected by section 100 and his complaint is dismissed."[6]The respondents, realistically, in the light of the comments we suspect of the judge at the preliminary hearing, accept that that was an appropriate action within the meaning of s.100(1)(e).[7]That still leaves the second ground of appeal, which is, as matter of causation the tribunal did not adequately make findings of fact to show that they had considered and reached a decision as to the reason of the dismissal. In particular, whether or not the appropriate steps taken by the appellant constituted the reason or the principal reason for the dismissal.[8]The evidence before the Industrial Tribunal is evidence, which is summed up in paragraphs 6 and 7 of the tribunal's decision:
"6 The Tribunal's preamble to its findings is that in considering the evidence we have been concerned at a number of extraneous matters brought in to the evidence by Mr Horton, whom we consider to have been an employee who went to inordinate lengths to record his concerns, and who became obsessed with the idea that the warehouse in which he worked was dangerous and in breach of a significant number of health and safety requirements. He also appears to have thought that management was negligent and uncaring and that other employees were corrupt. Neither have we been very impressed with the evidence given by most of the Respondent's witnesses, who, we thought, were being economical with the truth."
We have to say that we are somewhat concerned with the phrase "economical with the truth" means. In plain English we assume that it means inaccurate or dishonest. The tribunal went on to make certain observations about the mechanism of the health and safety organisation within the company. As we gave already indicated, the industrial members were extremely concerned that the attitudes towards health and safety that this decision reveals.[9]Having found that the appellant was outside the ambit of section 100(1)(c) the tribunal said:
"We therefore find that Mr Horton is not protected by section 100 and his complaint is dismissed"
. The tribunal went on at paragraph 8 to say this:
"8 However, we have also been very concerned at the manner of Mr Horton's dismissal. Had this been a complaint of unfair dismissal, we believe a Tribunal would have found the Respondents had reasonable grounds for believing misconduct to have occurred, but that 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 in all the circumstances to dismiss the Applicant."
[10]We have had before us a quite remarkably audacious series of submissions by the respondents' Counsel, Mr Griffiths-Jones. We have to say that we were fascinated by the forensic skill he has shown in riding two horses going in opposite directions and changing saddle midway.[11]Mr Griffiths-Jones' first argument is this. He says that it cannot be said to be an error of law for a tribunal not to make express findings on issues which, in the light of its other findings, it does not need to resolve. The tribunal having determined that the steps, which the appellant had taken, did not qualify as "appropriate steps" under the Act, the question is whether or not the taking of those steps was the reason for his dismissal did not arise.[12]Secondly, says Mr Griffiths-Jones, and more importantly, it is clear from paragraph the tribunal clearly concluded that the respondents had dismissed the appellant for misconduct. It is true and conceded that the Tribunal did not expressly identify the precise misconduct concerned, but this is less surprising that otherwise it would be, given that the issue was not strictly a live issue. Mr Griffiths-Jones accepts that the tribunal did not exactly give a glowing reference to the evidence called on behalf of the respondents, but paragraph 8 in its drafting is such, says Mr Griffiths-Jones, that the Industrial Tribunal was satisfied that the reason for Mr Horton's dismissal was not taking any steps about health and safety, but that the principal reason was his dismissal was in fact the appellant's misconduct. If the matter were remitted to an Employment Tribunal it could do no more than simply expressly articulate a finding that the taking of such appropriate steps was not the principal reason for the appellant's dismissal. It would be a pointless exercise Mr Griffith-Jones says.[13]Mr Griffiths-Jones' next point before us was that if you were going to remit it, then send it back to the same Employment Tribunal so that they could make proper findings of fact.[14]In fact, it is fair to say that although we compared the appellant's case to riding two horses in different circumstances and different directions, Mr Griffiths-Jones has persuaded us that the appropriate course is to remit this action and send it back to the original tribunal. We do not consider that paragraph 8, despite Mr Griffiths-Jones' submissions, is in fact a finding of fact on causation. The words "not protected by", the failure to identify the misconduct; the doubts expressed about the procedure and the like, are all matters which, in our view, mean that we cannot accept that they made a finding of fact that the effective reason was misconduct. We consider that the tribunal did not do so, and with fairness on their findings, it was unnecessary for them to do so. If we thought they had made express findings of fact, we would be very reluctant to send this case back to the same tribunal because it would be difficult to see how anyone would feel anything other than prejudiced by that as far as Mr Horton is concerned.[15]We think the appropriate direction to make is that the case goes back to the same tribunal to consider the issue of whether or not the taking of appropriate steps, which the appellant did, was the reason or the principal reason for the dismissal. We do not wish to fetter the discretion of that tribunal, but for ourselves we think it is inevitable, to adopt the words of one of the members, Dr Grieves, that there will to some extent be an opening up of the box. The tribunal is going to have to make findings as to what was the reason for the dismissal; was it because the respondent believed, however unfairly, that the appellant was guilty of misconduct, or was it because the respondents were fed up with someone who showed a concern to health and safety and he was dismissed because he had taken appropriate steps to end a danger.[16]We accept that Mr Horton said that he did not find it easy to deal with a gap of over 100 days between the two hearings. This may account for some of his dissatisfaction with what he believed was the fact-finding role of the tribunal, though we have pointed out and we point again that the criticisms of the respondents' witnesses were far greater than the criticisms of him. We are going to send it back to the same tribunal trusting, as we do, in their integrity to now look at the questions, granted that he is within the Act, and he is a person who is protected by s.100(1)(e), at the end of the day why was he dismissed? Was he dismissed for misconduct or was it that the respondents regarded him as a troublemaker they wanted to get rid of because he showed an unhealthily interest in health and safety and was a nuisance.[17]In those circumstances, the appeal is allowed and the tribunal is directed to make appropriate findings of fact as to whether or not the appropriate steps taken by the appellant constituted the reason or the principal reason for the dismissal.