MR G CLEAVER v HPL UNIVERSAL SERVICES HANDLING LTD (IN LIQUIDATION) [2004] UKEAT 0196_04_2909

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0196_04_2909

Case No Appeal No. UKEAT/0196/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR G CLEAVERAPPELLANT

HPL UNIVERSAL SERVICES HANDLING LTD (IN LIQUIDATION)RESPONDENT

Before

Her Honour Judge Wakefield Mr P M Smith Mr S Yeboah

Date 29 September 2004

[1]APPEARANCES For the Appellant MR CHRISTOPHER MONTGOMERY (Representative) For the Respondent No Appearance or Representation By or on Behalf of the Respondent HER HONOUR JUDGE WAKEFIELD This is an appeal by Mr Gary Cleaver in respect of the rejection by an Employment Tribunal sitting in Reading of his complaint that he was unfairly dismissed by the Respondent company, HPL Universal Services (Handling) Ltd, now in liquidation. In the Originating Application the Appellant claimed that he been employed by the Respondent between 1 October 2000 and 15 May 2003, latterly as Nightshift Manager. He said that on 29 April 2003 he was dismissed with 2 weeks' notice, the reason given by the Respondent being redundancy. The Appellant claimed that the dismissal was unfair by reason of the redundancy selection process and, by an amendment to the Originating Application, that the dismissal was automatically unfair, having been by reason of his having made protected disclosures.

[2]By the Notice of Appearance, the Respondent accepted that the Appellant had been dismissed and asserted that the reason was redundancy: the company had moved to different premises and there was a consequent shortage of work. The Respondent also submitted that the Appellant had less than one year's continuous service. There does not appear to have been any amendment to the Notice of Appearance following the new claim made by the Appellant on the amended Originating Application that he had been dismissed because of the protected disclosure.

[3]At the hearing on 5 January 2004 at the Employment Tribunal, the Appellant was represented by a former colleague, also by then dismissed by the Respondent, Mr Montgomery. For the Respondent Mr Gibson, a director, attended in order to give evidence but not to participate as an advocate.

[4]At the outset of the hearing the Chairman identified the issues and later set them out in paragraph 3 of the Extended Reasons which were sent to the parties on 9 January 2004. As there appear the issues for the Tribunal were these:

"(a) Whether the Applicant had been continuously employed from 1 October 2000 or whether there was a break in service such that the applicant did not have one year's continuous service to enable him to bring a complaint under Section 98 of the Employment Rights Act 1996. (b) What the reason for dismissal? The Chairman also identified from the outset that if the Tribunal found as a matter of law that the applicant had the service to pursue a complaint of unfair dismissal under Section 98 of the 1996 Act and the reason for dismissal was redundancy, it appeared inevitable that the Tribunal would find that there was unfair dismissal as there had clearly been a lack of procedure followed in dealing with any redundancy."

[5]Although there was no reference there to the issue of a protected disclosure, the Employment Tribunal did deal with this later in the Extended Reasons, at paragraphs 17 to 21.

[6]Having considered the evidence, which was oral from the Appellant and from Mr Gibson and by witness statements from three witnesses for the Appellant (who were present at the Tribunal but not called) and other documents including a form P11, the Employment Tribunal concluded, as to the continuity of the Appellant's employment, that "there was a clear break in the Applicant's service between 31 March 2002 and 17 June 2002". At the time of the dismissal, with the effective date of termination being 15 May 2003, the Appellant had therefore not been continuously employed for a period of one year and had no claim for unfair dismissal on the basis of unfair selection for redundancy.

[7]On the issue of protected disclosure, the Employment Tribunal said that it was the Appellant's case that he had, on a regular basis, recorded in his role as Nightshift Manager in a hand-over book for the Dayshift Manager, Mr Finbow, "concerns about the safety of fork lift trucks, inadequate clothing and the failure to x-ray certain items of freight" before they were sent for onward transport by air. Mr Gibson is recorded in the Extended Reasons as having given evidence to the effect that he was unaware of any such complaints and that "the hand-over book was an operational book and would only come to his attention if there were matters which Mr Finbow and the Applicant could not sort out themselves".

[8]The Employment Tribunal, for reasons set out in full in paragraph 14 of the extended reasons, overall preferred the evidence of Mr Gibson and did not regard the Appellant as a credible witness. The hand-over book was not in evidence before the Tribunal, it having apparently been lost by the Respondent.

[9]The Tribunal concluded, as regards the issue of the Appellant having made protected disclosures, as follows in their paragraphs 18 to 20:

"18. In order for the applicant to succeed in this regard, he must demonstrate to the Tribunal that it was a qualifying disclosure. The nature of the disclosure that the applicant described relating to the quality of the protective clothing and the defective equipment such as fork lift trucks, could fall within Section 43(B)(b) that it was a disclosure of information that the employer had failed, or is likely to fail to comply with the legal obligation. 19. Had that qualifying disclosure been disclosed to his employer or other responsible persons? There was considerable doubt in the Tribunal's view that it had been disclosed to the applicant's employer. The only disclosure the applicant personally had made, as opposed to other employees, was within an operational day book. As Mr Gibson was the person who was his employer, as opposed to the applicant's colleague he was not concerned with the operational handover book. He would be involved only if there were serious allegations. He was unaware of any serious allegations relating to the screening process or anything that required investigation. 20. The Tribunal therefore did not consider that although the applicant may have made qualifying disclosures that they fell to be protected disclosures."

[10]On the issue of the reason for the dismissal, the Tribunal then continued in their paragraph 21:

"21. Even if they had fallen to be protected disclosures the Tribunal did not find that the reason for the applicant's termination of employment was because he had made protected disclosures. The chronology of events was that on 29 April 2003 the applicant was dismissed without warning on the grounds of redundancy and told he would receive two weeks' notice. 22. On 1 May i.e. after the applicant had been dismissed, the respondent was made aware of the concerns of American Airlines and as a result of which they compiled a report. The applicant continued to receive his two weeks' notice as was confirmed in a letter of 8 May setting out the reason for his dismissal as redundancy."

And they say in paragraph 24:

"…it was clear to the Tribunal the redundancies were required and that was the real reason for the applicant's termination of employment."

[11]The Notice of Appeal raises in essence the following as grounds upon which this Appeal Tribunal is invited to conclude that the Employment Tribunal decision should be set aside:(a) That the proceedings before the Tribunal were conducted by the Chairman in a manner which restricted the Appellant's right fully to participate and thereby denied him a fair hearing, contrary to common law and to his rights under

Article 6 of the European Convention on Human Rights

as incorporated into English Law by the Human Rights Act 1998 .

(b) That the finding that the Appellant was not continuously employed by the Respondent between 1 October 2000 and 15 May 2003 was contrary to the evidence and perverse.

(c) That the finding that the Appellant had not made a protected and qualifying disclosure was contrary to the evidence and wrong and perverse.

[12]The hearing of this appeal was first listed before this panel on 7 September 2004. The Appellant was present and represented by Mr Montgomery. There was no appearance by or on behalf of the Respondent.

[13]Having heard part of Mr Montgomery's argument on behalf of the Appellant, and having asked for and obtained some further documents from the Employment Tribunal, we adjourned the hearing in order to invite the Chairman to give some further information as to the events at and surrounding the hearing on 5 January. The letter from the Employment Appeal Tribunal to the Reading Employment Tribunal is dated 9 September and the Chairman responded by letter dated 16 September. Included in the response were, as requested, the notes made by the Chairman of all the evidence given at the hearing.

[14]Having considered that response, the matters raised in the Notice of Appeal and the decision itself, we are not satisfied that the Appellant did receive a full and fair hearing of his complaint. Nor are we satisfied that the Extended Reasons fully and accurately reflect the evidence which was before the Tribunal. As to the latter in particular we note:(a) As regards the finding of a break in employment between 31 March 2002 and 17 June 2002, the Extended Reasons make no reference to the evidence in the witness statements of Mr Jones and Miss Flynn to the effect that the Appellant was working for the Respondent during most of that period. Both those witness statements were before the Tribunal and the Witnesses themselves were present but were not called despite, as Mr Montgomery has told us, his request that they should be. It appears from the Chairman's response to this Appeal Tribunal that the reason they were not called was because statements were available and Mr Gibson was not going to ask any questions himself. Clearly therefore the Tribunal considered that they had all that they needed. However the Tribunal in those circumstances were clearly wrong to say, as they did in paragraph 16 of their Reasons that "There was no corroborative evidence that the applicant had worked from the end of April through to the middle of June for the respondent".

(b) We note as regards any knowledge of Mr Gibson, the Managing Director, of complaints made by the Appellant about non-screening of freight (potentially a protected and qualifying disclosure) the Chairman's notes of evidence record that when questioned by a panel member at the Tribunal in the course of his evidence Mr Gibson said "I heard from the applicant about non-screening. I would hope I would be informed of non-screening", and yet in the face of that the Employment Tribunal say in their paragraph 15 of Mr Gibson "He was unaware of any serious allegations relating to the screening process or anything that required investigation".

(c) We note that the Employment Tribunal, having earlier in the Extended reasons said that they accepted the evidence of Mr Gibson in preference to that of the Appellant, go on in paragraph 23 of the Reasons to say this:

"Mr Gibson in giving evidence stated specifically that he had told no-one either inside or outside the company that Mr Cleaver had been dismissed for gross misconduct. He accepted that by implication the report to American Airlines could be read that way but that as a company they were trying to keep the contract with American Airlines and it was for that purpose that the report was compiled"

. However also before the Tribunal was a letter, dated 22 August 2003, from a solicitor in the litigation department of Croner Consulting, a firm then acting on behalf of the Respondent. That letter, written to the solicitors then acting for the Appellant, includes the following paragraph:

"We wish to make it clear that the screening required to be carried out is for bombs or explosives. Clearly since the incident on September 11 th this has become more significant and there is no way the Respondent company would wish to be responsible for another air disaster by failing to comply with the screening procedure. Any member of staff failing to carry out the screening would be dismissed for gross misconduct, as was Mr Cleaver."

The Tribunal make no reference to that.

[15]These are apparent contradictions which it is clearly not the role of this Appeal Tribunal to resolve. We are however satisfied for these reasons that the decision cannot stand. The Appeal is allowed, the decision of the Employment Tribunal is set aside and the matter is remitted to a newly constituted panel at Reading for a full merits hearing.