MR M PARKINS v SODEXHO LTD [2001] UKEAT 1239_00_1701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1239_00_1701Case No Appeal No. EAT/1239/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M PARKINSAPPELLANTSODEXHO LTDRESPONDENT
Before
His Honour Judge D Pugsley Ms S Amin Miss C HolroydDate 17 January 2001
[1]APPEARANCES For the Appellant MR WILLIAM BIRTLES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE D PUGSLEY This is a case in which, with all members of the Tribunal we wish to express our thanks to Mr Birtles who appears under the ELAAS scheme. To say that we are not in any way criticising the Appellant, he obviously feels strongly and he has filed an affidavit.[2]What Mr Birtles has done is to gather up the various skeins of wool in that affidavit and weld them into a consistent stream of authority, which makes us uncomfortable that this Tribunal may, and we emphasise, may, have made certain errors of law in their determination that the application for interim relief is refused, and in making an order for costs against the Applicant in the sum of £500.[3]I make no apology for being somewhat brief, for reasons I did not go into at great length, we have interposed this case in the middle of another case, and we therefore are going to be somewhat brief, but we are all united in our view.[4]Mr Parkins claims he was dismissed because he brought a health and safety matter to the attention of his employers, and he made a protected disclosure. He was claiming interim relief under Section 129 of the Employment Rights Act 1996. Evidence was received from Mr Parkins and although the Respondents were willing to put forward Mr Daniels to give evidence, the Tribunal did not consider that was necessary. The Respondents were represented by Counsel, Mr Lock and the Tribunal then proceeded to make various findings of fact. It is correct to say that the Tribunal were by no means uncritical of the Respondents. In paragraph 11 of their decision they say:
"11 The manner in which Mr Parkins was dismissed was entirely unsatisfactory and had this been a straightforward unfair dismissal claim the Respondents would have a lot of explaining to do to justify the fact that an employee could be dismissed for the reasons stated without any opportunity to be heard or any consideration given to his side of the story."
[5]So they were not unsympathetic to the position that the Applicant was. They went on to say this:
"All we have to do is to decide whether it is likely that when the case comes to a full hearing the Tribunal will conclude that the reason, or principal reason, for Mr Parkins' dismissal was one of the special reasons set out in Section 129(1). It is our unanimous view that none of the reasons set out in Section 129(1) - including the health and safety reason - was the reason why Mr Parkins was dismissed and therefore we refuse his application for interim relief."
They then go on to say this, later on in paragraph 14:
"It is our conclusion not only that Mr Parkins' application for interim relief fails, but that it was entirely without merit. We agree with Mr Lock that his application is frivolous and vexatious in the sense that it has no reasonable prospect of success and this is an appropriate case for making a costs order against him"
They then go on to make an order for £500.[6]Well, I think we ought to say this: that we think it is at least arguable that to say an application is "frivolous and vexatious in the sense that it has not reasonable prospect of success" may amount to an error of law, if one compares the Pre-hearing Review Rules at paragraph 7 with the order for costs under paragraph 12. It may be that my perception of my claim is one that would not be shared by others, and there was therefore no reasonable prospect of success, we are not sure that we can equate that with saying a person is acting "frivolously, vexatiously, abusively, disruptively or otherwise unreasonably" and we think there is an argument as to that issue.[7]As far as the overall structure is concerned, we have had the benefit of a very skilled Skeleton Argument by Mr Birtles and the submission that is made is made in two parts: the first part is in relation to Section 43 and 43B(1)(b) of the Employment Rights Act 1996. The relevant part of the subsection states as follows:
"43B Disclosures qualifying for protection (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -……. (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,"
[8]The Tribunal set out the statutory provisions, however the Tribunal, it is argued, erred in law in deciding that although the phrase "any legal obligation" in Section 43B (1)(b) by way of a bald assertion in the following language:
"it does not seem to us that an allegation of breach of contract of this nature could possibly fall within the language of Section 43B(i)(b) - i.e. failure to comply with any legal obligation. While everybody is obliged to comply with contracts of employment, we do not consider that an allegation of breach of an employment contract in relation to the performance of duties comes within the letter or spirit of the statutory provision."
[9]The factual matrix of the Appellant's allegation is found at paragraph 3 of the decision, bundle page 9. In essence it was that the Appellant alleged that it was a breach of his contract of employment to require him to have to phone a manager off-site at the end of his day to inform her:(1) When he was leaving(2) To inform her of any problems that might have arisen on site during the day.[10]The Tribunal did not consider whether or not the Appellant's allegation was a breach of contract because it did not examine its own evidence. As the Tribunal itself said: "We were not shown the contract of employment or the job description of Mr Parkins and we cannot say whether or not Mr Daniels was in breach of contract in instructing Mr Parkins to telephone to another manager rather than report directly to persons on site." (Paragraph 10 of the decision, bundle page 12.) In fact the Appellant contends that the Chairman specifically refused to allow him to refer to his contract and his terms of employment, which had been produced for the hearing. This is made in paragraph 11 of the affidavit, page 5 of the bundle.[11]The Tribunal did not consider the contract, but found as a matter of law that a breach in the employment contract would not be a failure to comply with any legal obligation to which the Respondents were subject. We consider that that point is arguable and that legal obligation might include, we do not say must, might include the contract of employment. We are unaware of any authority on this point, but in view of the relative recent introduction of the statutory provision, we consider that ground is arguable.[12]We also consider the issue as to costs, for the reason we have given, is also arguable. There have been supplemental grounds of appeal filed, which we have numerated consecutively as grounds, 3, 4, 5, 6 and 7. In a nutshell, the grounds of appeal encapsulate the following points: that the requirement to phone might constitute a matter which have a health and safety implication, that is in the new ground 3. The new ground 4, that the Employment Tribunal's findings of fact were perverse and they did not accurately reflect the Appellant's evidence - the Appellant was the only person to give evidence. The new ground 5 - we have already averted to, namely that in justifying the Order of Costs the test under Rule 7 is equated with the "frivolity" test under Rule 12 and we are not sure that that is appropriate. Under the new ground 6, that the Employment Tribunal, in ordering a preliminary hearing, was in fact, reploughing a field that already seem to have been fairly churned up by other hearings.[13]As far as ground 7 is concerned, that is that the Employment Tribunal's decision was biased and/or perverse for reasons set out in the Appellant's affidavit, shown on 3 November 2000 - paragraphs, 11, 12, 14 and 15. We want to make it absolutely clear that, as far as we are concerned, there is no tribal loyalty in seeking to prevent allegations of bias being made, if they are properly made and there is evidence to support them. We are bound to say, whilst it may be that the Tribunal was wrong, that is a matter for another Tribunal to decide. We cannot really say that being wrong, in itself, gives rise to an inference of bias.[14]We really do not see that paragraph 7 furthers the Appellant's case. If we may say so, it requires him, as it were, to carry an additional burden. We just do not see the evidence for saying the Tribunal's decision was biased, and/or perverse in the sense that the whole matter was perverse. If we may put it quite bluntly, we do not think that ground is made out; we do think that the other grounds are arguable.[15]We are in the middle of another hearing, and we appreciate we have not given the fullest reasons in respect of paragraph 7, but we have received an assurance from the Appellant himself, which we of course accept, that he is quite prepared to accept our judgment on the matter. So we give leave to appeal on grounds 1 - 6; we ask for Chairman's Notes of the evidence the Appellant has given at the interim hearing. We say this is a Class C case of half a day.