MR A JENNINGS v H & P FREIGHTWAY LIMITED [2000] UKEAT 636_99_0803

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 636_99_0803

Case No Appeal No. EAT/636/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A JENNINGSAPPELLANT

H & P FREIGHTWAY LIMITEDRESPONDENT

Before

His Honour Judge Collins

Date 8 March 2000

[1]APPEARANCES For the Appellant MR J FALKENSTEIN (of Counsel) Messrs Newbys Solicitors 100 Borough Road Middlesborough Cleveland YS1 2JH For the Respondents MR B CARR (of Counsel) Messrs Andrew M Jackson & Co Solicitors PO Box 47 Essex House Manor Street Hull HU1 1XH JUDGE COLLINS : This appeal has been well argued on both sides. It is an appeal against a decision of an employment tribunal at Middlesborough, whose extended reasons were promulgated on 30th March 1999. The decision of the tribunal was that the appellant was not dismissed for health and safety reasons, that is, he was not entitled to establish that he was automatically unfairly dismissed under s100 Employment Rights Act 1996 .

[2]The facts of the case may be stated shortly. Mr Jennings was a HGV driver with the respondents who specialised in the transport of chemicals. He had not had sufficient service by the time of his dismissal to qualify for an application for compensation for unfair dismissal. The respondents dismissed him on Saturday 28 November 1998 for refusing to obey an order to proceed to ICI at Billingham and pick up a load. The circumstances were that on Friday evening the appellant had been in Dewsbury when he received a phone call from Mr Tyreman, who was the respondents' transport manager, telling him that he had to do a job at ICI at Billingham the following morning. The appellant had slept in his cab a couple of nights that week and told Mr Tyreman that he had had a heavy week and that he was not likely to be in a state to do the job the following morning, but as the tribunal found, on the Friday night matters were left between the appellant and Mr Tyreman on the basis that he had received a firm instruction to do the job the following morning. On the Friday evening the appellant finished his work at Dewsbury, drove to Hull and had his vehicle unloaded and stayed at Hull overnight. He had a disturbed night, according to his evidence, but had an adequate period of rest under the appropriate regulations. He rose at 6:30 the following morning, spent almost three hours in Hull and returned to the respondents' depot at Teesport without undertaking the job at ICI at Billingham. When he got back to Teesport, Mr Tyreman was furious and told him to go back to Billingham to do the job. He refused and was dismissed.

[3]In Mr Jennings' originating application dated 14th December 1998 the appellant gives his own account of the history and to use his words:

"I explained I had been on … duty over 60 hrs and had been away 3 nights and I was tired."

I emphasise that there is nothing in the appellant's originating application to suggest in terms that he believed that there were circumstances of danger or that such danger was serious and imminent. He simply said he was tired.

[4]Now it is not clear from the papers in the case, and neither Counsel were able to assist, how the tribunal determined that the appellant's application was in fact one under section 100 of the 1996 Act. Box 1 in the originating application is left blank. At any rate, by the time the matter came before the tribunal on 12th March 1999 it was clear that it was a section 100 case. Accordingly, the tribunal had to consider the section. It provides, so far is material:

"(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- … (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."

The case for the appellant was that he was so tired as to bring himself within section 100(d) or (e).

[5]The tribunal found that the appellant had not been driving for so many hours over such a period as to be in breach of the Drivers' Hours Regulations, so that the instruction given by Mr Tyreman was a lawful one. Had the appellant's hours been exceeded the case would have proceeded on a very different basis. In our judgment and on a proper reading of paragraph 7 of the tribunal's reasons, they considered the question of the Drivers' Hours Regulations quite separately from the position under section 100. A criticism was made and this tribunal thought at the preliminary hearing that the criticism was reasonably arguable, that the tribunal had run the two together and decided that since the Drivers' Hours Regulations were not breached therefore there could not be danger under section 100. Having considered that argument, we do not believe that the tribunal fell into that error. We accept for the purpose of the argument that an employee in the appellant's position may be so tired as to bring himself within section 100 even though he has not exceeded the permitted number of hours. Therefore, the question is whether the tribunal correctly approached the question of whether there were circumstances of danger which the appellant reasonably believed to be serious and imminent.

[6]Before I turn finally to the way in which the tribunal dealt with that question, I must mention a subsidiary argument which was raised by Mr Falkenstein on behalf of the appellant. He said that if one looks at paragraph 7 of the tribunal's reasons it is apparent that they reached their decision after a failure to direct themselves properly in relation to what steps the appellant should have taken to enquire about the nature of the job at Billingham. It is clear from the Chairman's notes of the appellant's arguments that there was some discussion about what the nature of the Billingham job was and whether it was practicable for the appellant to argue that it was dangerous and that he believed it to be dangerous if he did not have a full idea of what the job was about. Accordingly at paragraph 7 the tribunal said:

"… 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. …"

We do not read that passage as suggesting that the tribunal was laying down a principle of law that in the absence of such enquiry it is not open for an employee to assert that there were circumstances of danger which he reasonably believed to be serious and imminent. We regard the finding as being confined to the circumstances of the instant case. They decided as a fact that the appellant did not know precisely what the job was which he was being required to undertake and they found as a fact that he did not reasonably believe himself to be in serious and imminent danger. That should be enough in our judgment to conclude the appeal. We decide that on a proper reading of the tribunal's decision, it depended entirely on their finding on a question of fact as to what the appellant reasonably believed and since they made that conclusion of fact having heard the evidence, it does not seems us that it is appropriate for us to go behind it.

[7]I ought to mention that there has been some discussion in the argument before us as to the wider circumstances. The appellant was claiming that it was dangerous for him to drive because he was tired, but in fact at about 9:30 in the morning on the Saturday he got into his vehicle and drove it some 2½ to 3 hours to the depot at Teesport which is somewhat inconsistent with his claim that he believed himself to be in serious and imminent danger. Enquires from the tribunal to the Bar have revealed that it would have only needed a drive of about another 12 miles for him to get from Hull to Billingham to do the job at ICI, although he might presumably have been involved in some additional time loading.

[8]In order to counter that difficulty, Mr Falkenstein sought to argue that the appellant's refusal to do the job he was instructed to do did not actually occur until his return to the deport at Teesport by which time he had already done 2½ to 3 hours driving and his argument that it was dangerous for him to continue to drive would have been that much stronger. We reject that argument for the reason that on a proper reading of the tribunal's judgment, at paragraph 3(h), it is clear that on Friday evening the appellant knew perfectly well that he had received a firm instruction to go to Billingham the next morning. The appellant demonstrated his refusal to comply with that instruction by not complying with it and going back to his depot. The suggestion that a refusal would have had to have been expressed in plain words to Mr Tyreman before it could be a refusal is not a suggestion which we were prepared to accept. A refusal by conduct can be just as explicit as a refusal by words. It is apparent that the appellant demonstrated his refusal to comply with the instruction by his conduct in not complying with it.

[9]So we conclude our judgment on this appeal by holding that the tribunal decided the case on the basis of their findings of primary facts having heard the witnesses, and it is not a conclusion behind which we are entitled to go.