MR P CLAYTON v ASHBOURNE HOMES LIMITED [2001] UKEAT 0502_01_2609

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0502_01_2609

Case No Appeal No. EAT/0502/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P CLAYTONAPPELLANT

ASHBOURNE HOMES LIMITEDRESPONDENT

Before

Mr Recorder Langstaff

Date 26 September 2001

[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED MR RECORDER LANGSTAFF QC This is a preliminary hearing in an appeal from the Employment Tribunal sitting at Birmingham. Extended Reasons for that decision were given on 27 February 2001. The Tribunal dismissed the Appellant's complaint of unfair dismissal.

[2]His right to bring that complaint depended upon him establishing jurisdiction which he sought to do by relying upon sections 43(a) – 43(g) inserted in the Employment Rights Act 1996 by the Public Interests Disclosure Act.

[3]Mr Clayton has not appeared before us to pursue his appeal. We have therefore to determine whether or not we should proceed to hear this matter in his absence. He did not appear before the Tribunal below. When he was written to on 17 August by the Registrar in respect of today's date he returned the letter with a note which reads:

"I am unable to attend in London as I do not have any money to spare sorry please rule in my absence."

We think that it is appropriate given his invitation to us indeed to proceed to rule in his absence and we exercise our discretion to do so.

[4]The Notice of Appeal which he has raised is limited to argue that, in a sentence contained on the second page, "you" (that is the Employment Tribunal) misunderstood current legislation. His argument is, as we understand it, that the Employment Tribunal interpreted the law in relation to the use of public service vehicles wrongly.

[5]We have considered the facts found by the Employment Tribunal. They hold that the Appellant was employed to drive a mini bus by the Respondent. Part of his duties was to collect employees and take them to and from work. He was asked to collect money from his employees. He expressed concern that by taking money he was in effect operating a public service vehicle. A public service vehicle licence was therefore required by law. There was no such licence.

[6]The Tribunal found that eventually he refused to collect the money. He was shortly thereafter dismissed. The Employment Tribunal heard evidence and expressed its reasoning in this way:

"We had several reservations about the obvious administrative and procedural shortcomings on the part of the company but, in view of the very short period of service by the applicant, considered that we should concentrate on the suggestion that the applicant's dismissal was because of a disclosure made by him in the reasonable belief that the respondent company was failing to comply with a legal obligation. Such evidence as we had was that the company had a mini-bus vehicle for the sole purpose of transporting its employees and residents; it was not for public services, nor in any normal sense for private hire i.e. available to anyone on payment. We are satisfied that the employees offered to contribute to running costs in exchange for a door-to-door service, and that as soon as the arrangement was queried, it was referred to Department of Transport officers (by the respondent employers) for advice and the contributions were in any event discontinued. The tribunal heard no evidence to suggest which licensing provisions might not have been complied with and also noted that the applicant's misgivings were voiced before complaints were received about his behaviour."

It then follows with a single sentence:

"We therefore concluded that the dismissal has not been shown to be consequent upon a qualifying disclosure of information by the applicant."

[7]There is logically a gap between those last two paragraphs. The gap is in establishing what was the reason for the dismissal of the Applicant if it was not for his complaints that the Respondents were in breach of the criminal law in operating a public service vehicle without a licence.

[8]However, as we read the Employment Tribunal's decision taken as a whole we see it as accepting the evidence which had been given to it which they recite on the previous page and thus finding as a fact that there had been complaints about the behaviour of the Appellant and that an adverse reference had been received from his previous employer.

[9]Accordingly, we think there is sufficient within the reasoning read as a whole to justify the decision of the Tribunal such that there is no arguable case that it is wrong in law. It follows that because our powers are limited to reviewing the decision of the Employment Tribunal to see whether there was any misdirection in law in a material respect, and there was no such misdirection, this appeal will be dismissed.