MR M R ASHCROFT v SERVICESTAND LTD T/A DESIGNER FOODS [2000] UKEAT 435_00_1007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 435_00_1007Case No Appeal No. EAT/435/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M R ASHCROFTAPPELLANTSERVICESTAND LTD T/A DESIGNER FOODSRESPONDENT
Before
Mr Justice LindsayDate 10 July 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of a preliminary hearing, the appeal of Mr Ashcroft in Ashcroft against Servicestand Limited, t/a Designer Foods. It has been indicated to the Office that Mr Ashcroft will not be attending and accordingly we give judgment in this matter without hearing further. On 17 August 1999 Mr Ashcroft, the erstwhile Production Manager at Designer Foods, lodged his IT1. He had been employed only from 24 May 1999 to 8 June 1999. Leaving aside other complaints, as to which there is no appeal, he did complain of unfair dismissal. The normal requirement is, of course, that unfair dismissal is only available to those that have served a year or more and, earlier, it was two years or more, but that requirement is not stipulated for if the employee is dismissed for a sole or principal reason being one of the reasons falling within section 100 (1) of the Employment Rights Act 1996 : see section 108 (3) and section 108 (1). Section 100 is concerned with Health and Safety cases and Mr Ashcroft's IT1, without expressly mentioning section 100 (1), certainly raised Health and Safety complaints and said that he had been dismissed for Health and Safety reasons.[2]On 13 September 1999 the Employment Tribunal received the Company's IT3 and it claimed that Mr Ashcroft had simply resigned and a letter was quoted of 8 June 1999 in which Mr Ashcroft wrote:
"I find it most unfortunate that I have to confirm that I am resigning from my position with your company, the last day of employment being 30 June 1999."
[3]A hearing was arranged and it took place on 5 November 1999 under the chairmanship of Ms C. Hyde. On 11 November 1999 the decision and Summary Reasons were sent to the parties. Under the heading "Decision" it said:
"The unanimous decision of the Tribunal is that: (i) it is declared that the Respondent unlawfully deducted the sum of £723.29 from the Applicant's wages and the Respondent is ordered to repay that sum to the Applicant forthwith; (ii) the Respondent is ordered to pay to the Applicant the sum of £1375 as damages for wrongful dismissal equivalent to one month's notice money, and (iii) the Applicant's complaint of unfair dismissal failed."
[4]On 25 February 1999 Extended Reasons were given. There is a Notice of Appeal saying "March 2000" without giving the date, and stamped as having been received on 4 April by the EAT. The Notice of Appeal makes the complaint:
"The Tribunal had misapplied or misconstrued the statutory test under Section 100 (1) (e) of the Employment Rights Act 1996."
[5]The Notice of Appeal then refers to an unreported EAT case called Masiak v City Restaurants (UK) Ltd , heard at the EAT on 29 June 1998 and it cites the case for the proposition that section 100 (1) (e) of the Employment Rights Act 1996 does not restrict the danger referred to in the section as to be protected against to being a danger to fellow-workers or to any workers or, indeed, to any other limited class but simply refers to "other persons", and does not make any stipulation as to any particular place or place of work. Section 100 (1) begins:
"(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 – And then there are (a), (b), (c), (d) and coming on to (e): "(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. (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. (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1) (e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them."
[6]The Masiak case is plainly right and a moment's reflection would confirm the sound common sense of the conclusion to which the language itself should drive one. One can imagine two alternative circumstances. In the first case, let us suppose an employee who, although not a Health and Safety Officer or representative, recognises circumstances of serious and imminent danger; let us suppose that there will be an oil-fed fire threatening the works and the houses in the area if something is not done within ten minutes. Let us suppose that the threat arises during working hours and the employee is surrounded by colleagues at work. He shuts off a crucial valve which act, he had been advised, was appropriate to avert the danger. However, let us suppose that production is lost and he is dismissed for doing as he did. He could surely claim to be within section 100 (1) (e). One would think it is exactly the sort of situation which the subsection was intended to cover. But then suppose exactly the same facts but now all the workmen have gone home and the same man is alone on night watch. He is in no personal danger, as he could easily get out of the threatened area within ten minutes, but there would be no possibility of clearing everyone out of the houses in the area within that ten minutes. He shuts off the crucial valve and again he is dismissed for doing so. Could anyone seriously argue that he was unprotected by section 100 (1) (e) simply because no fellow workers or perhaps no workers at all were in danger? – and it is to be noted that the reference is not to place but to persons. If section 100 (1) (e) required "the other persons" in danger to be fellow workers or even any workers of any kind then, in the second case we have given, the safety conscious man would be left without the very protection which surely Parliament was intending to give him. On the point of law the Tribunal said:
"Mr Ashcroft claimed that the Respondent had dismissed him in breach of section 100 of the Employment Rights Act 1996."
And a little later, in their paragraph 22 (with our emphasis):
"22. We next considered the unfair dismissal complaint. We were satisfied that the reason for the dismissal of the Applicant was that the Respondent was unhappy about the Applicant's meticulous approach to food hygiene. We were not satisfied that the Applicant had been a designated person within the meaning of section 100 to carry out activities in connection with health and safety. In any event we concluded that the reasons for the dismissal of the Applicant was that he called the Respondent to task about matters relating to the food production process which would affect the eventual consumers and not about health and safety at work ."
[7]It is certainly not clear that Mr Ashcroft's case truly fell within the serious and imminent danger provisions of section 100 (1) (e). Nor is the step that he eventually took, which may be argued to have been merely to offer or even invite termination of his employment, an obvious step to protect himself and others from serious and imminent danger.[8]Thus, whether or not the Tribunal misconstrued section 100 (1) (e) it does not necessarily follow that he was unfairly dismissed but it is at least arguable that in that passage, in their paragraph 22, the Tribunal's approach was to exclude section 100 (1) (e) simply because the threat in question was not to Health and Safety at work . Moreover, paragraph 5 of the Extended Reasons is arguably an inadequate summary, perhaps a confusing summary, of section 100 (1) (a) and (e).[9]It is, in our view, arguable that there are here errors of law, whatever the ultimate outcome of the case might be.[10]Accordingly, we see it as appropriate to send the matter to a full hearing. Skeleton arguments are to be exchanged between the parties and sent to the EAT not less than 14 days before the hearing.