MR M PARKINS v SODEXHO LTD [2001] UKEAT 1239_00_2206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1239_00_2206Case No Appeal No. EAT/1239/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M PARKINSAPPELLANTSODEXHO LTDRESPONDENT
Before
His Honour Judge J Altman Ms J Drake Mrs D M PalmerDate 22 June 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MR A LOCK (Representative) Messrs Beachcroft Warbroughs Solicitors 10-22 Victoria Street Bristol BS99 7UD JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at London Central on 19 July 2000 when the Appellant's application for interim relief was rejected and he was ordered to pay £500 towards the Respondent's costs of the Interim Hearing on the grounds that the application for interim relief was frivolous and vexatious.[2]In this case the Appellant began work with the Respondent on 17 January 2000 and he was summarily dismissed on 28 April 2000. He did not have the necessary length of service to found a claim for unfair dismissal, although we note that in their decision the Employment Tribunal did find that:
"The manner in which Mr Parkins was dismissed was entirely unsatisfactory."
[3]The Appellant made two claims. First he claimed that he had been unfairly dismissed because he raised a matter of health & safety and that he made a protected disclosure under the provisions of the Public Interest Disclosure Act 1998 , Section 43 (b) and therefore he was entitled to claim automatically unfair dismissal notwithstanding the length of his employment.[4]This is always a very difficult area for any Tribunal because, on the one hand the Tribunals have to be wary of employers who take advantage of employees before they have earned the right, through length of service, to claim unfair dismissal; on the other hand the Tribunals have to be wary of employees who seek to overcome the issue of jurisdiction by raising claims such as made here, which are not really the substance of the complaint. We are not saying that either of those applied here but we do recognise the difficulty that faces Tribunals in this sort of situation, so far as the fact-finding aspect of their work is concerned.[5]Because of the order that we intend to make, we propose to give our decision briefly. The matter came before the Employment Tribunal to deal with an application for interim relief. Sadly it had taken almost 3 months from the date of dismissal to the hearing so that the purpose of the application was to a large extent frustrated. No blame in relation to that is relevant or has been determined – it is simply the fact of delay that was unfortunate.[6]Essentially the Appellant had two areas of work and he complained, or says that he complained, on one of them where he had to use a buffing machine, that he did not have supervision on site and in the event of problems, he was instructed to telephone a supervisor off site in the evenings. He says now that that was a matter of health & safety and also gave rise to a breach of contract, which he properly complained of and as a result of his complaint he was dismissed.[7]It appears that the Respondents say something different. We have had the very helpful notes of evidence that the Chairman took in relation to this matter and on page 3 (25 of our bundle) appear the following questions and answers; "Did you have problems with being supervised in the evening?" Answer: "No" Question: "What was the protected disclosure?" Answer: "I informed my Manager that not having a Supervisor in the evening and requiring me to phone supervisor off site and to inform her of when I leave and of any problems was an infringement of my contract and Health & Safety at Work Act 1974 and relevant Regulations and Health & Safety Policy. Question: What did you say? What words were used?" Answer: "I said I can't take instructions from a supervisor who is not on site, but I continue to take them from Richard and other managers (Alan). Alan would check the restaurant."[8]No other evidence than that of the Appellant was given before the Tribunal, consistently with many procedures for such interim applications. But in the closing submissions of the Respondents the submission was recorded that there was no question here of the Appellant's health & safety because there was supervision on site from Richard and Alan. The Appellant has told us that that was in effect disputed; that they did not work for the Appellant's company; they were not in Line Management position and he was concerned, not with work he did at the restaurant, but work at the other place doing the operation of the buffing machine.[9]When the Employment Tribunal came to reach their decision they set out their conclusions from paragraph 5 onwards. They set out the correct statement, that the purpose of the proceedings was to determine whether there was entitlement to interim relief. They then set out correctly Section 129 of the Employment Rights Act 1996 , which states:
"(i) This section applies where, on hearing an employee's application for interim relief, it appears that it is likely that on determining the complaint to which the application relates the Tribunal will find the reason (or if more than one the principal reason) for his dismissal is one of those specified in Section 100 (1) (a) and (b), 101 A (d), 102 (1), 103 or 103 A."
[10]The Tribunal then said that the claim under Section 100 (1) (c), which relates where being employed where there was no representative of a Union to complain to, or representative of a Safety Committee, the employee brought, by reasonable means, health & safety issues to the notice of his employer, cannot give rise to an entitlement to claim interim relief. In theory that is correct but it is contended that Section 43 (b) of the Public Interest Disclosure Act 1998 sets out the sort of basis upon which such an application can properly be made.[11]Be that as it may, and although that led to an earlier adjournment, when the matter came before the Tribunal there had to be consideration of Section 43 (b).

(a) , which provides as follows:

"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 principle reason) for the dismissal is that the employee made a protected disclosure."
That, under Section 129, as quoted in the decision of the Employment Tribunal, entitles a person complaining of a protected disclosure to interim relief and of course it is simply necessary to show a reasonable belief that the health & safety of any individual has been, is being or is likely to be endangered.[12]If follows therefore, that apart from identifying the correct Section of the correct Act, the substance of the complaints really have not varied throughout these proceedings. Once they were corrected and particulars were given, the matter could proceed.[13]In their decision the Employment Tribunal consider first of all the application of Section 43B (b) as providing a definition of one qualifying disclosure, under the Public Interest Disclosure Act 1998 as being:
"(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject."
The Employment Tribunal then turned their attention to the meaning of that. They say this in paragraph 10:
"In relation to paragraph (b) he says that by instructing him to telephone his day supervisor Mr Daniels was in breach of the contract of employment. 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. However, 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."
[14]The question is this: where in Section 43B, one of the possible qualifying disclosures, is described as being the reasonable belief that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, does that term 'legal obligation' refer to legal obligations arising out of the contract of employment? We have had the opportunity of seeing the notes prepared by the editors of the Encyclopaedia of Labour Relations Law on this matter, in which they state:
"This includes a breach of any statutory requirement; contractual obligation; common law obligation for example negligence, nuisance, defamation or an administrative law requirement."
[15]It is obviously not sufficient under Section 43B that there should simply be a breach of contract but what has to be shown is first a breach of the employment contract as being a breach of a legal obligation under that contract. Secondly, there must be a reasonable belief that this has, is, or is likely to happen on the part of the worker. Thirdly, there must be a disclosure of that which is alleged to be the reason for dismissal. In other words, where it is a breach of the contract of employment, the worker is bound to make his case on the basis that the reason for dismissal is that he has complained that his employer has broken the contract of employment.[16]Subject to that as being the necessary basis for the whole complaint, under the protection from protected disclosures, we can see no real basis for excluding a legal obligation which arises from a contract of employment from any other form of legal obligation. It seems to us that it falls within the terms of the Act. It is a very broadly drawn provision.[17]In relation to the issue of interim relief it does raise questions which may not have been considered when the Section was drafted but we anticipate that the difficulty for an employee to show that that was likely to be found to be the reason for his dismissal would be as difficult a hurdle to surmount in this sort of area as it has shown to be in the past in other areas.[18]Accordingly, we do not agree with the assertion of the Employment Tribunal, where they say that "an allegation of breach of an employment contract, in relation to the performance of duties, does not come within the letter or spirit of the statutory provision." We find it difficult to define the spirit of this sort of legislation or to be confident that we know about it, but it certainly comes within the letter of the provision, on a literal interpretation. It seems to us that we do not need to go beyond that.[19]Interestingly, earlier on the Employment Tribunal made a rather qualified statement as to that. They say that "an allegation of breach of contract of this nature" could not possibly fall within the language of Section 43B. But again, it seems to us that that is not correct.[20]Accordingly, we have then gone on to consider, against that background, two features. The first is that it is the Appellant's case that he sought to argue about the contents of his contract of employment but that that was not taken up by the Employment Tribunal; indeed they set their face against considering it and that would be entirely consistent with their understanding of its relevance for the task that they had in hand at that time.[21]The second matter is that the Employment Tribunal went on to make a finding of fact when deciding, against that background, whether there should be interim relief, in other words, whether it was likely that the final Tribunal would find that the reason for dismissal was one of those which qualifies. They said this:
"It appears to us that the real reason why Mr Parkins was dismissed was nothing to do with health & safety or breach of contract – it was to do with the relationship between Mr Parkins and Mr Daniels, that Mr Parkins' manner and attitude to Mr Daniels was one which Mr Daniels found unacceptable and having had a row with Mr Parkins on 19 April, Mr Daniels concluded that Mr Parkins would have to go."
[22]The Notice of Appearance before the Employment Tribunal said this:
"He (the Appellant) was dismissed as he categorically stated that he would not take instructions from either his Supervisors or his Manager. There were no issues of health & safety raised by Mr Parkins at any time during his employment or his dismissal. He was never asked to carry out any duties or actions which were contrary to the Health & Safety at Work Regulations. "
[23]In effect, on the face of the decision, therefore, although the Employment Tribunal asked themselves the right question, when they came to answer it, it seems to us that they pre-judged the issue that would have to be decided at the main hearing, by accepting as the reason for dismissal that which was being put forward by the Respondent. Of course it follows that they did so without actually having heard evidence from the Respondents.[24]It is true that later in the decision the Employment Tribunal said:
"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)."
However they went on to reiterate really their finding of fact:
"It is our unanimous view that none of the decisions set out in Section 129 (1) – including the health & safety reason – was the reason why Mr Parkins was dismissed and therefore we refuse his application for interim relief."
[25]We are driven to conclude, therefore, that in analysing such evidence as there was before them the Tribunal asked themselves what was the reason for dismissal and came to a decision upon it that it was not any of those which were put forward by the Appellant. Of course that would disentitle him to interim relief, but it was a wholly different process which the Tribunal were asked to engage upon. They went further than they needed; they evaluated the evidence, they decided which evidence they accepted and rejected and they came to a conclusion that they accepted the assertion of the Respondents, unsupported by evidence on the matter. In effect they left nothing for the final hearing to decide.[26]We do not know what conclusion the Employment Tribunal would have come to had they looked at the evidence that was being put forward and asked themselves whether it was likely that the Employment Tribunal would come to a conclusion in favour of the Appellant. It may well be that on the evidence before them they would have come to the same conclusion by a different route. But they would at the same time have left open the very important task for the main Tribunal of hearing witnesses, hearing them being cross-examined and deciding where the truth lay and how the issues of credibility were resolved.[27]That process was prevented, effectively, by steps which were based upon, inevitably, a cursory review of the evidence. Furthermore, in the light of what we have already found, it was based upon a conclusion which was deliberately restricted by the exclusion of any consideration of the contract, as a result of what we found to be the error of law that the contract of employment could not found an allegation of failure to comply with a legal obligation under Section 43B.[28]So that, although on the one hand the Employment Tribunal seem to have gone further than they needed in their judgement of the facts, they did so in relation to an area of evidence which they had themselves made less than that which should be before the hearing for interim relief.[29]Accordingly, it seems to us, that we must find that the Employment Tribunal erred in the question they asked themselves in reality, as to the reason for dismissal, by asking themselves what was the reason for dismissal and forming a judgement about it rather than asking whether it was likely that the reason would be a qualifying reason at the final hearing.[30]The decision must be set aside on that ground. We have considered whether it would be right to deal with the matter ourselves on the evidence that was available, but it does not seem to us that we can take a view about the evidence in the face of the Appellant's own concerns that the totality of the note before us is not necessarily complete. In any event, on the basis that there are questions of interpretation of what was being said, we have not heard evidence in the sense of hearing a witness give oral evidence and being cross-examined. Therefore we have decided that we cannot deal with it.[31]We turn to the issue of costs. In their decision, the Employment Tribunal came to the conclusion that the application for interim relief was:
"entirely without merit"
Again, we are driven to conclude that, as the basis for the decision on interim relief was based on an incorrect legal foundation, it must follow that the basis that this Tribunal assessed the merits of the application must also be erroneous. Furthermore, the Employment Tribunal gave as their reasons their agreement with the Respondent's representative:
"that (the Appellant's) application is frivolous and vexatious in the sense that it has no reasonable prospect of success"
Of course at the time of this hearing the Employment Tribunal's constitution and Rules of Procedure Regulations 1993 provided a totally different procedure where it was believed that there was no reasonable prospect of success, namely a costs warning or a requirement for a deposit to be paid under Regulation 7 in advance of the hearing. Nowadays courts are entitled to strike out claims or make orders on the ground that there is no reasonable prospect of success as being a definition of frivolous or vexatious. However, at the time of this hearing it was only where the Employment Tribunal came to the conclusion that an application was bound to fail that they would be entitled to regard it as frivolous or vexatious.[32]We note with interest that the new Rules of Procedure for Employment Tribunals entitle a Tribunal to strike out or make orders on the grounds of no reasonable prospect of success but that was not so at the time. We therefore conclude that the basis for ordering of costs was erroneous and we allow the appeal, in that respect, by setting it aside. It does not seem to us that it would be equitable for that argument to be reheard against the background of a different basis for considering the application for interim relief. Furthermore, bearing in mind our finding that the Employment Tribunal rejected the Appellant's alleged reason for dismissal and preferred the reason put forward by the Respondent, we find that this would not normally be a reason for concluding either frivolousness or vexatiousness.[33]Accordingly we remit the application for interim relief to be heard by a freshly constituted Employment Tribunal. It also seems to us appropriate that the hearing should take place at the same time as the main hearing of the application for unfair dismissal because of the delay and because of the need to conserve the costs of the parties and the public in providing Tribunal accommodation, so far as is possible. Subject to the order that the 2 applications should be heard together which is made with the agreement of the parties this appeal is allowed.

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