MR A FERNANDEZ v EXLEY TRANSPORT LTD [2002] UKEAT 0681_02_2208

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0681_02_2208Case No Appeal No. EAT/0681/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A FERNANDEZAPPELLANTEXLEY TRANSPORT LTDRESPONDENT
Before
His Honour Judge J R ReidSir Gavin LairdDate 22 August 2002
[1]APPEARANCES For the Appellant MR D R F O'DAIR (of Counsel) Instructed by: Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ JUDGE J R REID QC This is the Preliminary Hearing of an appeal by Mr Fernandez against a decision of an Employment Tribunal in the form of the Chairman, Mr J N Leonard who, at Stratford on 22 May, gave Directions and confirmed Directions given the previous day, following a Directions Hearing.[2]So far as the various Directions he gave are concerned, only one matter is sought to be appealed. The claimant wishes to argue that, notwithstanding that he had been employed by the Respondent for less than 1 year, he was entitled to bring a claim for unfair dismissal and what he says is that the complaint is one which he is entitled to bring by virtue of sections 100 and 104 of the Act.[3]The circumstances, so far as they appear from his Originating Application and the document which was put in with the Originating Application by way of particulars of his claim, are these: that he being a lorry driver employed by the Respondents injured his ankle in getting out of his lorry one day and stepping on an uneven floor surface. The unevenness was caused, he says, by a new surface being laid which gave a 3 inch drop between the new and the old surface.[4]He found that his ankle was sore. After about a couple of weeks he asked for 3 days off to see his doctor about his foot, because he could see it was not getting any better, and he requested the money owed to him. He says that upon asking he was threatened saying that, if they gave him his money then he would not be working there any longer.[5]Mr O'Dair from the Free Representation Unit, who has represented Mr Fernandez today, has clarified that by telling us that what he was asking for was to be paid in advance for days already worked, that he would normally have been paid on the next pay day.[6]He put in a claim form which refers to wrongful dismissal and the particulars to which I have referred, the relevant part of which I have already summarised. The Tribunal allowed the claim to go ahead on various other grounds, indeed deciding at paragraph 3 of the Directions letter that the complaints requiring determination by the Tribunal were: a complaint of dismissal without notice or pay in lieu thereof; and claims for unpaid holiday pay; section 104 dismissal; and race discrimination.[7]The Chairman held that, so far as section 100 was concerned, it was not sufficiently pleaded, and that it would be wrong to allow the matter to go to a full hearing, because the delay was such that prejudice would be suffered by the Respondent if the application to amend long out of time were granted, when it was reasonably practicable for it to be presented in time and the application to amend properly to plead section 100 (1) (e) was therefore refused.[8]What is said is that the Tribunal Chairman was incorrect in his decision because, had he properly and benevolently construed the application, one could see there was already nestling in there a claim for unfair dismissal and that he should have been allowed it to be expanded in such a way as to amount to a claim, under section 100 (1) (e).[9]In our judgment, the Tribunal was entirely right in the approach which it adopted. The Chairman was guided by the approach indicated by the Court of Appeal in Housing Corporation v Bryant [1999] ICR 123 .[10]He clearly took a benevolent view of the way in which the Tribunal should construe the document. He took account of the fact that Mr Fernandez had only very limited command of English and that he was initially assisted by a friend who was a lay man. But it is clear that he took the view, and took the view rightly, that what was alleged could not amount to anything which had any prospect of success under section 100 (1) (e).[11]It will be remembered that section 100 (1) reads, so far as relevant as follows: 100 (1) "An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed is the reason (or, if more than one, the principal reason) for the dismissal is that – … (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."[12]What is said is that the story which Mr Fernandez had put forward sufficiently indicated that he was dismissed because he reasonably believed himself to be in serious and imminent danger and was taking (or proposing to take) appropriate steps to protect himself or others from the danger.[13]In our judgment this clearly is not the sort of thing that section 100 (1) (e) was intended to be dealing with. Here was a case where Mr Fernandez had suffered an injury some fortnight before. Unhappily, as it turned out, it was rather more serious than he initially thought, but to suggest that the circumstances (which are quite fully outlined in the document) amount to showing a viable case for saying that there was danger which he reasonably believed to be serious and imminent and that he was taking appropriate steps to protect himself or others from that danger, is, in our judgment, simply a non-starter.[14]The Chairman rightly said that, guided by the approach indicated by the Court of Appeal in Housing Corporation v Bryant he was:
"…unable to construe the particulars as bringing a complaint within section 100. The provision relied upon is that an employee shall be regarded as unfairly dismissed if the reason is that in the 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 danger."
He then sets out the allegation and goes on to refuse the leave to amend.[15]In our judgment there was no error of law in the Tribunal's decision. The matter was one which was not properly canvassed if it was intended to bring a claim under section 100 (1) (e) and what was canvassed indicated that the claim was not a viable claim.[16]In those circumstances it would be inappropriate to allow the matter to go further and Mr Fernandez will have to be content with going to the Tribunal on the various other matters which are allowed to go forward. We will therefore dismiss this appeal at this stage.