MRS D E MORAY v MC SQUARED LTD [2001] UKEAT 0975_00_1903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0975_00_1903Case No Appeal No. EAT/0975/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D E MORAYAPPELLANTMC SQUARED LTDRESPONDENT
Before
Mr Justice Hooper Ms G Mills Mr J C ShrigleyDate 19 March 2001
[1]APPEARANCES For the Appellant MR A SHARLAND (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE HOOPER This in an appeal against the decision of Mr Peters, Chairman of the Employment Tribunal not to accede to an application for extended reasons.[2]A hearing took place on 22-24 March 2000 and the Tribunal reserved its decision. The written decision was, with reasons in summary form, sent to the parties on 30 May 2000 (see pages 19-26). The Chairman in his reasons pointed out that, under Rule 10(4) of the Employment Tribunal Rules of Procedure, the parties were entitled to reasons in extended form if a request was made at the hearing or a written request was made by 20 June. No such request was made by the Appellant in time.[3]On 2 July 2000 the Appellant sent a letter to the Employment Tribunal in the following terms:
"Please would you send me, as a matter of urgency, a copy of the extended reasons for the Tribunal's decision. I have not been supplied with a copy and the deadline for me to make my appeal is next Monday, 10 July, which means I only have until this coming Friday to send it off."
In his reasons, Mr Peters wrote:
"That request is made out of time. The reasons given for the request being made out of time are"
. The sentence ends without having had the reasons filled in. Criticism is made by Mr Sharland of that omission. There were no reasons given in the letter to explain why the request was being made out of time. This is an important time limit. It is not fair on the Chairmen of Tribunals if there is a delay before such a request is made. Nonetheless it is the task of the Chairman to consider any reasons given why the request is being made out of time. None were put forward here. That may be because the Appellant did not appreciate the need for such reasons. Nonetheless, the Tribunal can only act on the material with which it is presented.[4]Criticism is also made of the fact that the Chairman did not specifically direct his mind, so it is said, to whether or not to extend time, under paragraph 15 of Schedule 1 of the Employment Tribunals (Constitution etc) Regulations 1993. We find it inconceivable that he did not have that in mind. However, he could not exercise that discretion unless there was material before him to entitle him to extend time. As we have said, there was no such material.[5]In the light of what we have already said, the decision to refuse seems to us not only to be not arguably wrong but inevitable. However the matter does not end there because in paragraph 4 Mr Peters wrote:
"I do not consider that the reasons in summary form insufficiently explain the Tribunal's ground for the decision."
It is submitted there that Mr Peters was making an error of law because extended reasons, so it is said, are required for the purposes of an appeal. Rule 3(1) of The Employment Appeal Tribunal Rules provides that an appeal to the Appeal Tribunal shall be instituted by serving, amongst other documents, a copy of the extended written reasons for the decision of the Tribunal. Indeed it has been held that in the absence of extended reasons this court may refuse to hear the appeal. We do not accept that argument. It seems to us that what the Chairman was doing is no more than saying that, in any event, the reasons which had been given were sufficient. No doubt that is something that an Employment Tribunal could take into account when deciding whether to exercise its discretion to extend time.[6]So we dismiss the appeal but we certainly give leave to the Appellant to rely on the reasons to which we have already referred.[7]Mr Sharland has drawn to our attention that the letter sent to the Appellant which suggests that the only appeal to be heard today is the appeal against the refusal to furnish extended reasons. There is certainly ambiguity in the letter of 3 August 2000 (see page 7(b)). Any ambiguity must be resolved in favour of the Appellant. We have offered the Appellant an adjournment to prepare her appeal fully if that is necessary. She is content for the appeal to proceed. I give her a further opportunity, because one knows that when one is appearing, albeit with the benefit of Mr Sharland, one is inevitably nervous. ("Mrs Morey are you quite content for this appeal to go ahead today? Do you feel that between you and Mr Sharland, you are able to deal with the full appeal?" "Yes" "All right, that is what we will do then")[8]This is an appeal against a decision of the Employment Tribunal. The Chair of which was Mr Peters. The unanimous decision of the Tribunal was that the Appellant was not constructively dismissed. Accordingly her complaints of constructive unfair dismissal and constructive wrongful dismissal were dismissed.[9]In 1983 the Appellant commenced employment as a Secretary with a company which specialises in exhibition design. It was a small company with three working directors and four employees. Very sadly over the years the Appellant has had a number of physical ailments. To use her own words in her grounds of appeal, she suffered "from a multitude of symptoms, including headaches, nausea, poor concentration, deteriorating memory, chest tightness, poor co-ordination etc". She believes that much, if not all of that, was caused by her exposure to various fumes while working with the Respondent company. Fortunately since leaving the company, nearly all of her physical symptoms have disappeared. She still suffers when exposed to petrol exhaust fumes and some perfumes, so she says.[10]The thrust of her complaint to the Employment Tribunal was that she had to resign because of the breach, by the Respondent, of two implied terms of her contract of employment. For the purposes of this appeal we are concerned only with the first of the two, namely an implied term to take reasonable care for the safety of employees. To put it another way, an implied term to provide a safe working environment. As Mr Sharland developed the argument it became clear that the principal issue, although not the only issue, was the alleged failure to provide some £450 worth of air purifiers, or de-ionisers.[11]We shall examine the decision first, by reference to the findings in relation to the ionisers. The findings will be found set out in paragraph 5(x) onwards. On 5 March the Appellant spoke to one of the directors about the possibility of obtaining an air purifier or de-ioniser. When she indicated a cost of about £50, the director told her that he did not need to see the brochure but go ahead and buy one. Following that conversation the Appellant contacted the Air Improvement Centre in London and obtained various leaflets concerning air purifiers. From her conversation with that centre the Appellant concluded and was so to inform her employers, that three air purifier units would be required at a total cost of about £450.[12]On 8 March the Appellant spoke to another director. One of the solutions to the problem of the fumes was to move her to the boardroom. During a conversation about that, the Appellant mentioned air purifiers and said that she now believed that three units would be required. That director discussed the need for three units and asked whether one would be effective in a large open plan studio. He explained that before spending that sort of money the directors would need to be sure as to the effectiveness of the units and it was suggested to the Appellant that she should arrange for representatives to call in to discuss the matter. Unfortunately the Air Improvement Centre was not prepared to send someone there. The Appellant herself went to the Ideal Homes Exhibition but unfortunately fell ill. She herself bought a portable air purifier for £149.95 and she started taking that into the office from 6 April. On 15 April the Appellant told one of the directors that she would like to reduce her hours so that she could miss the traffic and improve her lifestyle. This proposal found favour with the director and it was left that the Appellant would contact the accountants to get out pay figures for the reduced hours. At the end of that meeting on 15 April, the Appellant again mentioned air purifiers. The director could not understand why there was a continuing problem given that he had already agreed that the Appellant could buy an air purifier for about £50. There was another meeting on 21 April to discuss reduced hours and towards the end of that meeting the Appellant raised again the question of fumes in the office and an air purifier. A discussion took place where various matters concerning smells and fumes were discussed. The Appellant became distressed and told the directors that she "had had about enough that she could take" and she was not going to come back without an apology. The Tribunal found as a fact that the directors were nonplussed by this. She came back to work the next day[13]On 27 April, there was a further meeting with the Appellant. Prior to that meeting the directors prepared a letter intended to be "an agenda setting document". It is important to read that document in full:
"We very much appreciate the work that Daf does for all four companies and value her honesty and dedication to her job. Daf has been suffering from various health problems and is obviously not happy at work. We do not want to lose her and wish to iron out the two requests made by Daf. The purpose of today's meeting is to discuss and resolve these points. 1 Air qualify Daf has stated that she has a medical sensitivity to solvents and has shown us a list of these which include: glue, lighter fuel, paint and perfume, amongst others. Ten people work within the studio, all have reduced the use of solvents to a minimum (including Barbara not wearing her perfume). Daf asked PB if the company would buy a de-ioniser cost approximately £50. PB said yes. The next day Daf said to WA that we needed three units cost approximately £600 [that was before any discount which would have reduced the price to about £450]. WA asked Daf to seek expert advice on the effectiveness of de-ionisers before we spent that amount of money. We await a reply but we are happy to purchase a unit for the accounts cost approximately £150. 2 Working hours Daf approached PB saying that she had to sort herself out and would it be possible to reduce her working hours allowing her to miss traffic, go swimming and give her a better lifestyle. PB, WA and RS all agreed to this. Hours to be discussed and agreed on. 3 Any other concerns"
On 27 April the Appellant attended with her friend and the meeting commenced with the agenda being given to the Appellant and then read out. There was discussion as to the type and effectiveness of the air purifiers recommended by the centre. Discussion seemed to go around the same matters, so the Tribunal found, without resolving anything.[14]The Appellant was then signed off ill by her Doctor. Various telephone calls were made by the Respondents directors to the Appellant and on 7 May they wrote to her to ascertain the position, in particular as to whether she would be coming back to work as the 27 April meeting had ended rather suddenly. The Respondent also contacted Mole Valley District Council Environment Health Department to arrange for an inspection of the office premises to see if there was a problem with air quality. On 14 May 1999 the applicant sent a letter to the Respondent tendering her resignation. She wrote that she had "no option but to take this course of action due to my ill health". That she wrote, was due to the working conditions that she had endured over the years. It was said that despite knowledge of the problems the directors had chosen to do nothing about them. She said that she could not trust the company to rectify the problems.[15]In its conclusions the Tribunal said that it was satisfied that the Respondent did address and take seriously the Appellant's concerns that the working environment was affecting her health. It is quite clear, so the Tribunal said, that the Respondent was willing to accept the Appellant's contention that the working environment was affecting her health, albeit that no one else in the office had any similar problems. They were prepared to rectify the situation. They then recited the question of the £50 purifier and went on to say:
"When her request changed to three air purifier units as a cost of some £600 before discount, it was not unreasonable for the Respondent to adopt the view that before it spent that sort of money it wanted to be satisfied that the equipment was suitable and would be effective. It was part of the applicants job to deal with equipment ordering, including arranging demonstrations."
[16]The Tribunal found that at the meeting of 27 April it was quite clearly stated that they were happy to purchase a unit at a cost of £150 and the cost of approximately £600 for three units was not ruled out. The Tribunal could find no evidence that the Respondent had failed in its duty to take reasonable care for the safety of the Appellant. It noted again that there were no concerns raised by the other staff as to air quality.[17]The Tribunal did not accept that the Respondent had chosen to do nothing about her working conditions nor that the Respondent's attitude at the meeting of 27 April was such as to lead her to believe that she could not trust the Respondent to rectify problems in relation to her working conditions.[18]It is right to say that the Appellant has filed with the court very substantial grounds. We have read them and we see nothing in there that could arguably undermine the Tribunal's conclusions about the ionisers. There is, in our unanimous judgement, nothing arguably perverse in the conclusions that the Tribunal reached. The fact that the Appellant is very disappointed and unhappy with the result cannot change that. This Tribunal's task is to see whether or not the Tribunal arguably reached a conclusion which was perverse. It did not.[19]Mr Sharland then submitted that in any event this was:
"the last straw that broke the camels back"
We invited the Appellant to address us as to what were the other things which had led her to the situation she found herself in when she resigned. She essentially reiterated that the company had not properly looked after her. She mentioned that what she was doing was not only for herself but for other staff. She submitted that really they had ignored her well being over a period of time.[20]The agenda for the 27 April meeting showed on the contrary that the Respondent did not want to lose her and that the directors did wish to iron out the requests and were willing to spend up to some £150 on one unit for the office. But if one looks back over the history of the matter, the decision contains a number of findings which the Tribunal was entitled to reach. For example, early in 1999 the Appellant spoke to one of the directors about having experienced problems with the smell of perfume worn by another member of staff, Barbara. Barbara ceased wearing perfume in the office. During her address to us she mentioned the issue of pay. If one looks at paragraph 5 (4) one sees that after she had made a complaint about her pay, she received a substantial pay rise backdated to the previous month of 1 June 1998. Although we do not propose to set it out in detail, if one looks at paragraphs (vi) and (vii) one sees a long term reduction in the use of solvents by the Respondent, no doubt, in part at least, as a result of technological advance. For example spray mount, so the Appellant said, caused her considerable problems. In order to deal with that they would either warn the Appellant before it was used so that she could close her office door, or indeed they would try to use the spray mount only when she was not in the office. Fortunately in 1997, as the Tribunal found, spray mount was replaced by a product which produced no smell. Again they were able to cease using ammonia when a large ink jet printer was produced.[21]In paragraph (xxvii) the Tribunal found as a fact that the Appellant had been provided with additional equipment when requested, notably an anti-radiation computer display unit screen, an orthopaedic chair and an electric fan and heater. We have already referred to the contact with the local authority to arrange for an inspection of the office premises to see whether there was any problem with air quality. We have already mentioned the absence of complaints by others. That is specifically referred to in their findings, in paragraph (xxvii):
"No complaints of smells (fumes) were made by other staff and the directors did not notice any poor air quality in the respondent's offices except smell of cigar smoke from the neighbouring solicitor's office."
In her grounds she complains that the fumes would permeate and linger in the entire building. Some of those fumes must have come from a related company. Looking at it in the round, as we hope we have done, it seems to us that it could not be said that it was a case of the straw breaking the camel's back. This Tribunal is unanimously of the view that there is no arguable ground of appeal here. The Tribunal in its reasons set out carefully the conclusions that it was reaching and there is, we repeat, nothing in those conclusions which can properly be said to be perverse.[22]We would like to add that we are grateful to Mr Sharland for the concise and able way in which he presented this appeal.