MR R F CUNNINGHAM v P & O TRANS EUROPEAN LTD [2001] UKEAT 165_01_0606

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 165_01_0606

Case No Appeal No. EAT/165/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR R F CUNNINGHAMAPPELLANT

P & O TRANS EUROPEAN LTDRESPONDENT

Before

Mr Justice Lindsay

Date 6 June 2001

[1]APPEARANCES For the Appellant MS C RAYNER (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW MR JUSTICE LINDSAY (PRESIDENT) We have before us, as a preliminary hearing, the appeal of Mr R F Cunningham in the matter Cunningham v P & O Trans European Ltd. Today, Ms C Rayner of Counsel has appeared for Mr Cunningham, as, indeed, she did below.

[2]The hearing below was at Stratford between 23 and 24 October 2000, before a three-person panel under the chairmanship of Mrs L Goldman, and the unanimous decision of the Tribunal was that the applicant did not suffer an act of detriment under section 44(1) of the Employment Rights Act 1996. His claim therefore failed.

[3]We ought, perhaps, first to have a look at section 44(1) which says:

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that- (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or a member of a safety committee- (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such committee, [(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),] (c) being an employee at a place where- (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (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 paragraphs (a), (b), (ba), (c), (d) and (e), which together can all be conveniently called, for immediate purposes, "protected grounds", all refer in some detail to health and safety matters or to possibilities and dangers.

[4]It was Mr Cunningham's case that he had been subjected to a number of detriments and that those detriments were done on protected grounds. The detriments that he claimed were that a small sum, £43.68, was deducted from his wages in the particular week; that on 12 November he had been requested to travel to Hampshire on a 'SOCO', a particular contract; that a particular vehicle was not assigned to him in the week beginning 15 November 1999; and that a vehicle previously driven by a Mr Reynolds was not assigned to him, when Mr Reynolds left a job and when it became vacant, in line with the respondent's usual procedure. He said that on 18 November 1999 he was accused by Mr Wells, the recently appointed transport manager, who accused him of driving without a seat belt and that he was not given any further information about who had complained, despite his asking for it. He said that there were some safety issues raised by him that remained unresolved and that the respondent did not deal with the appellant's grievance which was requested on 28 November 1999.

[5]The Tribunal, as it seems to us, having set out their understanding of the law by reference to a passage in Harvey on Industrial Relations and Employment Law, section DII paragraph 553, then sought to apply that law to the particular incidents concerned and concluded, as we have seen, that there had been no breach of section 44(1); indeed, they claimed that no detriment had been suffered under 44(1).

[6]Ms Rayner has laid before us a full argument but only in one respect do we see an arguable error of law and, of course, we must emphasise that, first of all, at a preliminary hearing, we are only concerned with what is arguable and, secondly, that it has to be an error of law as opposed to any other kind of error because it is only errors of law which justify interference by the Employment Appeal Tribunal.

[7]The only error of law which would seem to be arguable is in respect of the last of the complaints, namely the grievance hearing. As to that, in their paragraph 16, the Tribunal says:

"With reference to the seventh complaint, the Respondent has to this day not resolved the Applicant's request for a grievance hearing [and the next words are important]. No satisfactory explanation was given for this. The Respondent's more senior management clearly expected the grievance to go ahead. However, we find that the reason for the grievance not being pursued is not a matter that is connected with the health and safety activities. No inference can be drawn with respect to the failure to act upon the Applicant's grievance."

A little later, referring to the same subject in paragraph 19, they say:

"Although the grievance procedure did not go through the proper channels and still has not done so, we do not find that that failure is connected to the Applicant's health and safety activities. Nevertheless, we deplore the failure for a grievance procedure to be carried out, no matter what the size of the organisation. This particular Respondent has the resources to do so."

It seems to us that there is room for an argument, as Ms Rayner argues, that where one has an apparent detriment, namely, that the grievance was not pursued, and where an explanation is called for and yet "no satisfactory explanation was given", then the Tribunal really needed to go into more detail than it did before saying that no inference could be drawn with respect to that failure. Why was it that the Tribunal found that the failure was not connected with the applicant's health and safety activities? One can put that as an argument on Meek v City of Birmingham lines (namely that no explanation was given sufficient to show whether an error of law was being committed by the Employment Tribunal) or one can put it, by reference to analogies from the well-known King case, that there was a defect in the steps taken by the Tribunal in its reasoning. But that we do see as an issue that is proper to be sent to a full hearing.

[8]As to the other issues, we find that the Tribunal dealt with each separately and also it seemed properly to have stood back and regarded the matter as a whole and that in each case one cannot say that even, if there was a detriment, that it was not satisfactorily explained in the sense that the Tribunal had grounds for accepting that the detriment was not imposed (if that is a right word for a detriment) on a protected ground. We do not, I think, need to go through each separate finding as the Tribunal did but we do say that in respect of those other matters the Tribunal appears to have accepted evidence that denied a connection between the detriment, if any, and the protected ground. We should say this though, that we expressed some doubts about the correctness of the approach described in the quoted passage from Harvey . We gave, almost as an olive branch to Ms Rayner, an argument that the approach there set out was wrong in law. If, of course, it was wrong in law, it stood to undermine the whole decision because the decision proceeded upon the basis of that self-direction on the law. The doubts that we had about the correctness of the Harvey passage were simply that it involves consideration of whether the complainant has been treated differently from an actual or hypothetical comparator and yet section 44(1), as it seems to us, involves no such survey. Next, the passage in Harvey asks whether the reason for that different treatment was the employee's protected act. But, again, unless one has a comparator, the difference of treatment is not a thing that arises and it does not seem to be a requirement of section 44. Moreover, the passage in Harvey talks of whether that different treatment did in fact result in the detriment to the employee which seems somewhat back-to-front in the sense that the Act looks to see whether there has been a detriment and then asks whether that detriment was done on one or more of the protected grounds. However, having offered that as a possibility to Ms Rayner, she clearly did not want to accept it and in that circumstance, obviously, the point is not to be open to her.

[9]And therefore we are left only, as it seems to us, with the grievance ground and that is the only ground which we permit to go ahead as being the only ground in which we can discern some arguable error of law.