MS J DE HANEY v (1) BRENT MIND (2) MS L LANG [2003] UKEAT 54_03_1903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 54_03_1903Case No Appeal No. EAT/54/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J DE HANEYAPPELLANT(1) BRENT MIND (2) MS L LANGRESPONDENT
Before
His Honour Judge J McMullenDate 19 March 2003
[1]APPEARANCES For the Appellant The Appellant in person HIS HONOUR JUDGE J McMULLEN QC This is an appeal concerning the Public Interest Disclosure Act 1998 amendments to the Employment Rights Act 1996 and the health and safety provisions in section 100. We will refer to the parties as Applicant and Respondent. The appeal arises on behalf of the Applicant out of a Decision made at an Employment Tribunal sitting at London Central, registered with Extended Reasons on 11 September 2002, Chairman Mr G P Sigsworth, following an eight day hearing, including one day in Chambers. Public interest disclosure[2]The Applicant claimed direct race discrimination, breach of the public interest disclosure provisions, victimisation on the grounds of making a complaint of racial discrimination and dismissal on the grounds of health and safety. The Tribunal dismissed all of the claims. Both parties were represented by Counsel; today Ms de Haney represents herself.[3]We have decided that part of her appeal should go forward to a full hearing. This is to do with the public interest disclosure allegations relating to a disclosure which the Applicant contends was a qualifying disclosure made on 19 February 2001, orally, to Mr David Hardman, see paragraph 2(iv) on page 3 of the Reasons. It is accepted that she made subsequent qualifying disclosures in writing on 6 March and 2 May 2001, but the Tribunal found that the Applicant's suspension and dismissal were not caused by those two latter disclosures. It dismissed the Applicant's case about an oral disclosure on 19 February.[4]The Applicant has shown us what appears to us to be an error in the Tribunal's findings in a paragraph headed "Public Interest Disclosure" on page 17 of its Reasons under (i). The Applicant had not proved that the appointment of Ms Scrivener had been made in breach of the Equal Opportunities regime. The allegation had been put in very late as a makeweight, never having raised its appearance before her witness statement.[5]However, it is clear from her disclosure on 6 March 2003 that the Applicant was referring to what had been disclosed to Mr Hardman, for she says:
"In fact I note with interest that David only raised issues after I challenged him about the methods he used to appoint Trudi Scrivener to her present post, her suitability for the post, third party comments about the service delivery, Walm Lane and the fact that I do not believe the post is necessary or cost effective."
We cannot go into the details, but the Applicant has demonstrated that she has a reasonably arguable point that she had raised the matter prior to 6 March. She tells us that Mr Hardman had denied knowledge of what was said at the meeting and that the finding by the Tribunal that Mr Hardman did not recall the matter being raised in the way the Applicant intended, is different from what was said in evidence. We will ask the Chairman of the Tribunal to provide a note of the cross-examination (we have the witness statement) of Mr Hardman in respect of the meeting between the Applicant and him on 19 February 2001 only[6]The Applicant contends that her dismissal on 9 May 2001 was connected to her original disclosure, since following the 19 February disclosure, the Applicant's probationary period was extended and her pay docked. That would have an effect upon the claim that her dismissal was connected to her disclosure and was not to do with alleged gross misconduct. We consider that that issue is reasonably arguable and, therefore, we will allow the whole of the public interest disclosure aspect of this appeal to go forward. Health and safety dismissal[7]The Applicant contended that she had been dismissed in circumstances calling into play section 101(1)(e) of the Employment Rights Act : in circumstances of danger, which she reasonably believed to be serious and imminent, she took appropriate steps to protect herself from that danger. The Applicant gave evidence that she had been working in excess of the 35 hours a week which she was contracted to do.[8]The Tribunal accepted that the Applicant's attendance was of concern to the Respondents; she took a good deal of time off concerned with sickness, which was associated at least in part, we assume, with a benign cyst which had been diagnosed. The Applicant had failed to attend Housing Management meetings and did not attend courses or parts of courses.[9]Having addressed itself correctly to the provisions of section 101, the conclusion of the Tribunal, was that the Applicant had failed to make her case, that she genuinely believed that the circumstances of her work gave rise to serious and imminent danger to her health, and took steps to protect herself by not working more than 35 hours a week. The Tribunal noted that if that were the reason for her dismissal, in other words in order to meet the demands placed upon her that she would have to work more than 35 hours a week, she would succeed. The Applicant contended that she was suffering from a pre-existing benign cyst and was being asked to cover the duties of others, which would cause damage to her health.[10]The Tribunal concluded that the circumstances of danger in which the Applicant found herself were neither serious nor imminent. It made a conclusion that she was not overworked and:
"certainly not compared with anyone else in the organisation, and she was not required to work more than a thirty five hour week"
The Tribunal went on to say this:
"imminent danger means just that, something that is immediately likely to happen, in the nature of a one-off event, such as a dangerous or defective piece of equipment or the like. It seems to us that the Applicant here is casting around for another jurisdiction under which to bring her complaints and trying to shoehorn her case into a provision of the Act where it really does not fit."
In our judgment, the conclusions of fact by the Tribunal on the health and safety issue preclude her being able to establish, with any reasonably arguable prospect of success, that she was dismissed in breach of section 101(1)(e) and we will dismiss that ground of appeal. Procedural irregularity[11]Two other grounds of appeal have been raised today. First, the Applicant contends under the heading of "Procedural Irregularities" that the Tribunal should have considered her request for an interim relief hearing under PIDA. It appears that there is no jurisdiction for such a hearing, but, in any event, the purpose of interim relief is to hold the ring and maintain the employment relationship pending a full hearing. A full hearing has now taken place and we see no merit in any argument relying upon the request by the Applicant for an interim relief hearing.[12]Secondly, the Applicant contends that certain documents were not included in the main bundle at the outset of the eight day hearing, but had been submitted by the Respondent during it. She accepts that all relevant documents were, by the time of judgment, before the Tribunal. She has identified none that have any direct relevance to the finding which she seeks to unseat, and, therefore, we will dismiss the appeal based upon those "procedural irregularities". Review[13]Next, the Applicant contends that the Tribunal committed an error of law in failing to review the Decision. She says that on 25 September 2002, she wrote to the Chairman asking that the Decision be amended to deal with certain factual inaccuracies, and she has had no reply. We have not seen either her request or any response from the Tribunal, and are unable to form any view about this matter. It may be that the review application was not received by the Chairman.[14]We take this matter no further, but the Applicant might renew her application to the Chairman so that the position may be known by the time of the full hearing. The Second Respondent[15]In view of our above decisions it seems there is no liability for Ms Lang to defend. The Applicant is given 7 days from the date of the receipt of this Judgment to make any representations to the contrary, after which Ms Lang will be dismissed from the appeal.[16]Category C, half a day and the usual directions for a full hearing, including, the notes of the Chairman in respect of Mr Hardman's evidence see para 5 above.