THE CHIEF CONSTABLE OF TAYSIDE POLICE v DOUGLAS JAMES FISHER [2004] UKEAT 0048_04_1512

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0048_04_1512

Case No Appeal No. UKEAT/0048/04

Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF

Between

THE CHIEF CONSTABLE OF TAYSIDE POLICEAPPELLANT

DOUGLAS JAMES FISHERRESPONDENT

Before

Lord Johnston Mr P Pagliari Mr M G Smith

Date 15 December 2004

[1]APPEARANCES For the Appellant Mr K Forrest, Advocate Instructed by- Messrs Blackadders Solicitors 30 & 34 Reform Street DUNDEE DD1 1RJ For the Respondent Mr M McKay, Advocate Instructed by- Messrs Lawson Coull & Duncan Solicitors 136/138 Nethergate DUNDEE DD1 4ED SUMMARY HEALTH & SAFETY Health & Safety Detriment S 44 Employment Rights Act LORD JOHNSTON: This is an appeal at the instance of the Chief Constable against a preliminary finding by the Employment Tribunal, sitting in Dundee, that it had jurisdiction to entertain a complaint by the Respondent Applicant, under section 44 of the Employment Rights Act 1996 .

[2]In essence the problem arose from a decision of the Chief Constable to impose a policy change whereby officers went solo on the beat. This was considered by the Respondent to raise a health and safety issue, which he endeavoured so to do.

(c) , which is in the following terms:

"44 (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- … (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"

[3]It is not necessary to set out the Decision of the Tribunal in detail. It is sufficient to summarise its reasons for determining that it was not reasonably practicable for the Applicant to raise the matter with the Health and Safety Committee, as focused under the legislation to which we have just referred, were firstly that he did not know who the representative or representatives, by name, were on that Committee. Secondly, when he took the matter to Mr Findlay, was a representative of the Police Federation, he was peremptorily treated and the matter was not entertained. Thirdly, that he in due course received a letter from a senior officer, Inspector White, in very pejorative and indeed alarming terms, and this caused him to desist from any further action at the time.

[4]Against that background, the submissions before this Tribunal on behalf of the Chief Constable were precisely as set out in the grounds of appeal, which are in the following terms:

"5. The Appellant's grounds of appeal are that the Employment Tribunal erred in that: (a) they found that it was not reasonably practicable for the Applicant to raise a concern he had regarding Health & Safety (the issue of solo policing) through the Respondent's Health & Safety Representatives (see page 11, lines 41 -43). In simple terms, this simply flies in the face of the local Tribunal's Findings in Fact. The Employment Tribunal found in fact that information regarding the identify of the Respondent's Health & Safety Representatives and Health & Safety Committee members would have been available to the Applicant on the Tayside Police Intranet. They also go on to find that the Applicant, had he sourced the information on the Tayside Police Intranet, would have been able to contact the representatives (see page 9, lines 46 -48). Although it is not reflected in the local Tribunal's Decision, the Applicant agreed in cross-examination that he had made no effort to source the information through the Intranet and at the date of his cross-examination was still unaware as to the identity of the relevant individuals. Again, although it is not reflected in the Employment Tribunal's Findings in Fact, a witness called on behalf of the Applicant (Constable Shaw) indicated that he himself had raised matters through the correct channels in relation to Health & Safety issues relating to solo policing. The local Tribunal was directed to the Decision in the case of Walls Meat Co Ltd -v- Khan, 1978 IRLR 499. In particular the local Tribunal was referred to issues relating to lack of knowledge. In the Walls Meat case, this related to knowledge of the employee's requirement to raise proceedings within the appropriate time limit. In that particular case, it was indicated that ignorance on the part of an Applicant could be an excuse but only in the event that the Applicant had made all appropriate enquiry. The local Tribunal has failed to meet with the dicta in the Walls Meat case, particularly insofar as it relates to the Applicant's failure to raise matters through the management's Health & Safety Committee. In the event that the Applicant had not taken the most basic of steps to establish the identity of members of the Committee it is submitted that it is not open to the local Tribunal to make a finding that it was not practicable for him to do so. Further, the local Tribunal has failed to understand the relationship between the Applicant, the Police Federation and the Appellant. The Police Federation is the Applicant's representatives. They are not part of the chain of command or management team within the Appellant's organisation. The Appellant is for the purposes of Section 44 of the Employment Rights Act the "

Employer". In the event that the Police Federation as the Applicant's representatives were not prepared to deal with matters through the Federation's representation to the Health & Safety Committee then that was an issue between the Applicant and his Federation. The Applicant was perfectly entitled to raise the matter directly. Similarly the Applicant could have insisted on his line manager or Divisional Commander in raising the issues. The Applicant chose not to do so. The local Tribunal indicate on page 10 of their Decision that the key matter which the Tribunal had to judge was in relation to the meeting between the Applicant and Constable Findlay, which meeting took place on or about 30th September 2003. That, it is submitted, is erroneous. Although it is conceded that the local Tribunal indicate at the top of page 10 of their Decision that representations would have required to be channelled through Constable Findlay as the full time Police Federation Secretary, this is inconsistent with the local Tribunal's statement on page 11 where they indicate that they consider on the basis of evidence the appropriate route by which the Applicant ought to have been able to raise matters was either through one of the three Health & Safety Representatives at Constable level, or through Mr Findlay. The error into which the local Tribunal has fallen is considering the meeting between the Applicant and Constable Findlay in isolation. It is clear that the meeting between Constable Findlay and the Applicant was a heated meeting. There is no finding in fact to the extent that during the course of the conversation between the Applicant and Constable Findlay that he formally asked Constable Findlay to raise matters through the Federation with the Health & Safety Committee or Health & Safety Representatives. There is however at the bottom of page 10 of the local Tribunal's Decision a statement that the Tribunal accepted the Applicant's evidence that he went to see if "the issue" could be raised through the Police Federation structure. There is however no finding to the effect that Constable Findlay refused to do so or indeed that that was the Police Federation stance on the matter Having regard to the evidence, it would appear that following upon the meeting with Constable Findlay the Applicant simply abandoned the intention (if indeed he ever had one) of raising matters through the structure of the Health & Safety Representatives and Committee and contacted his MSP. In his evidence, under cross-examination, the Applicant indicated that his failure to do so was a combination of the response that he got from Constable Findlay and the letter he received from Inspector White. Given the timing of the Applicant's approach to Roseanna Cunningham, clearly that could not have been the case. The submission on behalf of the Applicant by his Counsel followed that line of reasoning and indicated that as a result of the responses that he had had from Constable Findlay and Inspector White, the Applicant felt that any representations he made would not achieve the result he wished, ie, a finding by a Health & Safety Committee that his concerns were founded. It was on that basis that he approached Roseanna Cunningham. That, with respect to the local Tribunal, is an incorrect view to take of matters. What one requires to look at is whether or not it was reasonably feasible for the Applicant to raise matters through the Health & Safety Representatives or the Health & Safety Committee. In short, for the Applicant to establish that it was not reasonably practicable for him to have raised matters with the appropriate representatives or committees, he would require to show that he at least had a knowledge of the committees and their membership or that it would not have been possible for him with due diligence to find out who was on the committees. The local Tribunal makes a finding that he could have done so and that he could have raised matters with the appropriate representatives. The local Tribunal make a finding that the Applicant would require to have gone through the Police Federation to do so but this is contradicted by a statement on page 11 that the appropriate way to raise concerns was either through Constable Findlay or through the three Health & Safety Representatives at Constable grade. Given that the Applicant even at the date of Tribunal could not identify the three Constables who sat on the Health & Safety Committee at that level, it is submitted that this is fatal to the Applicant's case in asking Tribunal to find that it was not reasonably practicable for him to raise matters through the appropriate channels and that he required to go to an external source."

[5]It is to be seen from that narrative that a number of issues were raised, but the essential point taken was that the Applicant could have discovered the names of the representatives by reference to the Police Internet. He did not do that, and therefore any finding by the Tribunal that it was not reasonably practicable for him to have raised the matter with the Committee was inconsistent with that provision and, indeed, perverse. Reference was made to Wall's Meat Co Ltd v Khan

[1978] IRLR 499

[6]Mr Mackay, appearing for the Respondent, submitted that no matter of law was raised by this appeal and, in any event, the evidence was more than sufficient across the board to support to the Tribunal's conclusion. He referred us to Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 118

. He drew attention to a number of evidential facts, eight in all, which were essentially to the effect that the Applicant had been blocked by the attitude of his line manager, the attitude of Findlay at the Police Federation, the attitude of the senior officers and finally by the letter in question, to which the Tribunal make reference, from Inspector White. He pointed out, in any event, that had he gone through the usual channels of the Committee he would have finished up, in any event, with Mr Findlay and would have got nowhere, or certainly not achieved any more or less than he achieved with respect to what he actually did.

[7]He recognised the force of Khan in relation to an issue of time limits when all an applicant need do, effectively, is enquire of a tribunal office what the time limits in a relevant case are. But we also take onboard what is said by May LJ in Palmer , as referred to us by Mr McKay, showing that the issue is much broader than that simple question.

[8]In this case, we are in absolutely no doubt that the Tribunal reached a Decision that it was entitled to achieve on the question of reasonable practicability. The fact that the Respondent could have referenced to the internet is far outweighed by the attitude of his senior officers, not least that of Findlay, and, much more importantly, the pejorative and indeed offensive terms of the letter by Mr White, which was job-threatening, if not worse. Any reasonable man receiving that letter would be bound to feel that his job and his whole career in the police force was at stake and that accordingly he had better not take the matter any further. If that does not bear on the issue of reasonable practicability, we have great difficulty in seeing what does, and we deprecate the terms of the letter in question.

[9]In these circumstances, we are entirely satisfied that the Tribunal's Decision was sound on the evidence, and one they were entitled to reach. This appeal will therefore be dismissed.

[10]The case requires to be returned to the Employment Tribunal for further procedure. We consider in this case, given that the particular Tribunal Chairman and members have an insight to this case and heard the evidence at the initial hearing, we consider it appropriate that the case should proceed to a full hearing before the same Tribunal, if that is practicable.