MR WILLIAM G COATS v STRATHCLYDE FIRE BOARD [2009] UKEAT 0022_09_0311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0022_09_0311Case No Appeal No. UKEATS/0022/09Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR WILLIAM G COATSAPPELLANTSTRATHCLYDE FIRE BOARDRESPONDENT
Before
Lady Smith Mrs A E Hibberd Mr J M Keenan Mc IpdDate 3 November 2009
[1]APPEARANCES For the Appellant MR D ONIFADE (Consultant) Intravires 13 Guthrie Street Edinburgh EH1 1JG For the Respondent MR B NAPIER (One of Her Majesty's Counsel) Instructed by: Strathclyde Fire Board Legal Services Section Brigade Headquarters Bothwell Road Hamilton ML3 0EA SUMMARY Firefighter, who was also trade union health and safety representative, claimed that, having made a protected disclosure, he had suffered a detriment (section 44 of the Employment Rights Act 1996 ) and been refused permission as a health and safety representative to take time off for the performance of health and safety functions. Claim dismissed. Perversity appeal not upheld. THE HONOURABLE LADY SMITH This is an appeal from the judgment of an Employment Tribunal sitting at Glasgow, Employment Judge S McLean, dismissing the claimant's claims that, having made a protected disclosure, he suffered a detriment and that, in his capacity as trade union health and safety representative, he was refused permission to take time off for the performance of his health and safety functions. The judgment was registered on 4 March 2009.[2]We will continue to refer to parties as claimant and respondents.[3]The claimant was represented by Mr D Onifade, Consultant, before the Tribunal and before us. The respondents were represented by Ms K Pitt, solicitor, before the Tribunal and by Mr Napier QC before us. BACKGROUND[4]The claimant was employed as a firefighter by the respondents. He was also safety representative for his trade union (the FBU).[5]At a case management discussion on 8 July 2008 Mr Onifade was allowed to amend the claimant's ET1 and the issues were identified. Two of those matters remained at issue by the end of the subsequent hearing in October and December 2008, namely: "1. Suffering a detriment as a health and safety representative under Section 44 of the ERA. 2. Being refused permission as a health and safety representative to take time off work for performance of health and safety functions in accordance with Regulation 4(2) of the Safety Representative and Safety Committee Regulations 1977." (See: Tribunal Judgment para. 5)[6]The background to the claimant making what the tribunal accepted was a protected disclosure was that one day in May 2007, an appliance known as an "Aerial Rescue Pump" ("ARP") overturned when it was approaching a roundabout on a journey to a "999" call relating to a fire. The respondents instructed a road traffic accident reconstruction expert, Jack Marshall, to investigate and report.[7]Mr Marshall carried out a reconstruction exercise.[8]On 28 May 2007, Mr Marshall wrote a letter to Mr Morris of the respondents (the Head of Logistical and Technical Services) advising that, as a result of what he had observed during the reconstruction, he recommended that drivers of all similar ARPs restrict their speed to a maximum of 15 mph and, if necessary, less on tight turns. Mr Morris considered that the recommendation was premature; it was not based on any factual evidence. He did not pass it to the FBU or to the claimant. In a subsequent briefing note (dated 14 June 2007) Mr Marshall explained that the recommendation in his earlier letter of 28 May was purely in the interests of safety pending the completion of enquiries and research. We were advised that Mr Marshall's final report has not, even as at November 2009, been completed.[9]The claimant prepared an interim FBU Health and Safety Report and presented it to an FBU Committee meeting. By letter dated 31 May 2007, he wrote to the respondents' Chief Fire Officer, Mr Sweeney. He stated in that letter that his preliminary findings were that the accident took place at low speed, that there was little difference in design as between the different types of ARP and that he advised that all ARPs should be removed from service immediately. At the meeting referred to in the next paragraph, the claimant admitted that his letter was a "back protecting exercise".[10]At a meeting on 4 June 2007, the claimant requested access to certain reports relating to the incident; he was to be provided with them. Mr Morris requested that the claimant channel all requests for information through him so as to improve the co-ordination and dissemination of relevant information. The claimant agreed to do so.[11]By letter dated 21 June 2007, the claimant wrote again to Mr Sweeney, again advising that all ARPs should be withdrawn from service until the publication of the police and Mr Marshall's reports into the accident.[12]On 27 June 2007, the FBU sent the claimant's "interim report" to all health and safety representatives at stations where ARPs were in use and suggested that they bring it to the attention of station personnel, particularly ARP drivers.[13]On 3 July, the claimant met with Mr Morris and others from the respondents including Mr McDonagh, the assistant Chief Officer (Operations). The claimant raised various technical questions about ARPs and Mr Morris offered the FBU access to a technical forum comprising of key experts from the respondents. The meeting was to be organised for some time during the week of 9 July 2007.[14]Immediately after that meeting, Mr Morris became aware of the claimant's "interim report" and its circulation. He had serious concerns about the accuracy of its content. As a result, Mr McDonagh wrote to the claimant by letter dated 4 July 2007 (drafted by Mr Morris). The fourth paragraph of that letter was in the following terms:
"As a result of this misrepresentation of information I am now requesting that you submit to me all of the technical questions that you wish to raise in writing. Thereafter I shall have the response documented to you in writing to avoid any further confusion or misunderstanding."
[15]By further letter of 4 July, Mr McDonagh wrote to the claimant (again as drafted by Mr Morris) recommending that the "interim report" be recalled since the details in it could not be substantiated or corroborated by any qualified professional at that stage.[16]The claimant did not reply to either letter. A meeting between him, Mr Morris, Mr McDonagh and the secretary of the FBU, Mr Speirs, took place on 25 July 2007. Following the meeting the FBU withdrew the "interim report".[17]In August 2007, there was an informal meeting between the Strathclyde FBU Chairman and Vice Chairman, Mr Cairns and Mr Miller, and Morris and Mr McDonagh. It was an amicable meeting. Mr Morris said that one of the ARP manufacturers had invited them to attend their premises in Finland. Since one of Mr Morris' team could not attend he offered the place to the FBU. The Tribunal found, at paragraph 45:
"To taunt Mr McDonagh, Mr Cairns suggested the claimant. The light hearted response was that the offer was withdrawn."
[18]The tribunal refer to that conversation as being "banter" between the individuals concerned.[19]Thereafter, Mr Cairns and Mr Miller discussed who should go on the Finland trip and it was decided that Mr Docherty, the FBU regional representative, should do so. The claimant was told of the decision. He agreed that Mr Docherty should go. The tribunal found, at paragraph 47:
"The claimant did not consider that there was any particular benefit from going to Finland as all the information could be obtained by alternative means."
[20]On 10 December 2007, the claimant asked for special leave on 5 December and 12 December for "trade union duties and activities". His request was refused on grounds of insufficiency of remaining cover. In early January 2008 the claimant requested leave on 8 and 22 January 2008, to attend university where he was studying for diplomas in health and employment law. He was refused leave on 8 January due to insufficiency of remaining cover but was granted the request for 22 January. On 5 January 2008, the claimant sought time off for "trade union duties and activities H&S" on 14 January 2008. There was to be a training exercise at Belville Street that day. He was refused leave on grounds of insufficiency of cover (by mistake). Matters were checked and he was subsequently granted leave, on 14 January. Tribunal Judgment[21]The Tribunal found, in the claimant's favour, that his "interim report" amounted to a protected disclosure under and in terms of ss.43A, B and C of the Employment Rights Act 1996 . They were not, however, satisfied that the claimant had suffered any detriment on the ground of that protected disclosure. The claimant's claim of detriment comprised: 1. restriction of access to the technical forum to raise questions directly with them 2. exclusion from meetings and briefings by senior managers regarding the ARP; allied to this seemed to be a complaint that what was referred to as Mr Marshall's "interim report" i.e. his letter of 28 May 2007, was not disclosed to the claimant; 3. denial of the opportunity to visit Finland to meet and question the manufacturers of the ARP involved in the incident; 4. rejection of grievance without a proper hearing.[22]The Tribunal applied the appropriate test of whether or not a reasonable worker would consider that he had suffered a detriment ( Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 ; Law Society v Bahl [2003] IRLR 640 ) and were not satisfied that the claimant had suffered a detriment.[23]Regarding the first matter, at paragraph 160 of their judgment, they set out their conclusions:
"16. The Tribunal found that the letter to Mr Sweeney had been sent and Mr Morris knew the views expressed in it by 4 June 2007. Further neither the claimant nor other FBU representatives requested a meeting with the technical forum. While the meeting that was offered on 3 July 2007 did not take place the Tribunal was not satisfied that following the (sic) Mr Morris' receipt of the Interim Report there was a restriction placed on the FBU or the claimant on raising questions or the nature or number of those questions with the technical forum. There was no evidence to suggest that these matters could not be addressed in writing. The Tribunal was not satisfied that a reasonable worker would take the view that the claimant had been placed at a disadvantage"
[24]Regarding the second matter, the Tribunal found that the claimant was actually present at a number of meetings after the incident. Insofar as there were meetings at which the ARP was discussed which the claimant did not attend, the FBU was represented and there was no evidence that the claimant would normally have attended those meetings or, indeed, that the choice of FBU representation at them was anything other than that of the FBU. Regarding Mr Marshall's "interim report" of 28 May the Tribunal did not consider that the failure to disclose it to the claimant was cause for concern in the circumstances and for the reasons explained by Mr Morris. The Tribunal concluded there was no detriment.[25]Regarding the third matter, the Tribunal took account of the "banter" that had taken place regarding the prospect of the claimant attending the trip. It was, though, just banter, the FBU proposed who should go on the trip, the claimant agreed with their proposal that Mr Docherty go and there was liaison between him and the claimant before and after the trip. Further, the claimant had not considered there would be value to him in going on the trip. The Tribunal concluded there was no detriment.[26]Regarding the fourth matter, the Tribunal noted that the employee who handed it did not know about the "interim report", that she considered it appropriate to leave over questions about the ARP until after Mr Marshall had completed his investigations, that she was, however, concerned regarding allegations about lack of dignity and respect being afforded to the claimant and that she asked the claimant for further information in that regard. The claimant did not, however, respond to that request and so the grievance procedure was not completed; Mrs Docherty did not reach a conclusion about it. The Tribunal concluded that there was no detriment.[27]The Tribunal also carefully considered the claimant's complaint of breaches of the Safety Representative and Safety Committee Regulations 1977 . They were not satisfied that the respondents were in breach. The claimant's complaint was, as we have noted, that he had been refused permission to take time off for the purpose of performing his health and safety functions. They were not satisfied that the respondents had done so. They set out their considerations at paragraphs 188 and 189:
"188. In relation to the applications for special leave in December 2007 there was no evidence to suggest that it was necessary for the claimant to be off on the particular dates and time requested or that the functions were not capable of being carried out at another time. 189. As regards Mr Smith's refusal to grant leave in January 2008. The Tribunal noted that the original application was dated 5 January 2008 when the claimant was unaware of the Belville Street Training Exercise. There was no evidence to suggest that on being alerted to this on 11 January 2008 the claimant informed Mr Smith of the development or drew to his attention that the availability figures on 5 January were above 188. The Tribunal noted that Mr Kinnon who was also a safety representative was able to attend on 14 January 2008. It was not clear to the Tribunal why it was necessary for both safety representatives to be in attendance. In any event the claimant was ultimately granted permission to take time off but did not do so."
Relevant Law[28]As regards the question of whether or not the claimant suffered a detriment, the Tribunal required, on the facts found by them, to consider whether the claimant had a justified and reasonable sense of grievance about matters complained of ( Shamoon at para 105) or, to put it another way, whether a reasonable worker would or might take the view that the treatment he received was to his detriment ( MOD v Jeremiah [1980] QB 87, 104; Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48 at para 53; Law Society v Bahl ).[29]Regarding the 1997 Regulations, para 11 provides that a safety representative may present a complaint to an Employment Tribunal that his employer has failed to permit him to take time off in accordance with Regulation 4(2) which provides:
"An employer shall permit a safety representative to take such time off with pay during the employee's working hours as shall be necessary for the purposes of – performing his functions under section 3(4) of the 1974 Act and paragraph 1(a) to (h) above. Undergoing such training in aspects of those functions as may be reasonable in all the circumstances having regard to any relevant provisions of a code of practice relating to time off for training approved for the time being by the Health and Safety Executive. under section 16 of the 1974 Act."
[30]The claimant's complaint was one of failure to allow him time off for the performance of his health and safety functions and thus fell within the provisions of Regulation 4(2)(a). The question for the Tribunal was, accordingly, whether the claimant had established that it was necessary for him to take time off to enable him to perform any of the health and safety functions falling within the section 2(4) of the Health and Safety Act 1974 or under paragraphs 1(a) to (h) of the 1977 Regulations, on the dates and at the times he was refused permission. The Appeal[31]The appeal was presented on grounds of perversity. Mr Onifade addressed us under four heads. Firstly he submitted that the Tribunal's decision that the restriction placed on the claimant which required him to channel his questions through Mr Morris was not a detriment was perverse. The test for detriment was a relatively modest one and it was not just a matter of the claimant's questions having to put in writing; they had to be put through an intermediary. He spoke of there being an apprehension that the questions would be edited and/or the responses manufactured or altered in some way. Secondly, he submitted that the Tribunal were perverse in not concluding that the claimant had been placed at a disadvantage in not going on the trip to Finland; that was a detriment. The Tribunal should have found that there was a detriment unless it had been satisfied that there had never been any real question of the claimant being the FBU's choice. The Tribunal should have investigated matters further. The evidence showed that the claimant had wanted to be treated like any other employees (just like the claimant in Khan ) and to be considered for inclusion in the Finland trip. Thirdly, the Tribunal had failed to take account of relevant considerations regarding the disclosure of Mr Marshall's "interim report". It was a deliberate act done on the grounds of a protected disclosure. When it was pointed out to Mr Onifade that the receipt of Mr Marshall's "interim report" and the decision to withhold it predated the claimant's protected disclosure, he seemed to be suggesting that Mr Morris then was obliged to volunteer disclosure of Mr Marshall's interim report once he knew of the claimant's one. Fourthly, Mr Onifade submitted that the Tribunal had erred in failing to ask whether the requests were reasonable. It was not a matter of looking at necessity. He referred to Regulation 4(2)(b) in that regard.[32]For the respondents Mr Napier pointed out that the relevant regulatory provision was Reg.4(2)(a) not (b), given the claimant's confirmation of the nature of his complaints as recorded by the Tribunal. That being so, the submissions regarding the refusal of leave did not get off the ground. Regarding the first ground of appeal, Mr Napier pointed to the Tribunal having accepted Mr Morris' evidence, to the correspondence and to there being no suggestion that the claimant would be limited in the number or content of questions he could ask. There were no factual findings to suggest that his enquiries would be edited or the responses manufactured. So far as the Finland matter was concerned, Mr Napier pointed to the Tribunal's findings and submitted that they certainly did not support a conclusion of detriment. Put shortly, if a person was told they could not have porridge for breakfast but they did not want porridge, there could be no question of the denial of the opportunity to have porridge being a detriment. That was exactly the situation with the Finland matter. Regarding the third matter, Mr Napier pointed out Mr Marshall's interim report had not been sent to anyone. It was not that the claimant had been singled out. Mr Morris had explained the reason why: the views were preliminary and it was not a final report after full investigation. In short, on no view did the appeal pass the perversity test. Discussion and Decision[33]We have no hesitation in dismissing the appeal. Perversity is a high test; the appellant must be able to show that the Tribunal failed to take account of a relevant matter or took account of an irrelevant matter and/or that its decision was one which no reasonable Tribunal could have reached. Various descriptions of such decisions have been used in the past. They include that the decision is irrational, offends reason, is certainly wrong, is clearly wrong, is not a permissible option, is fundamentally wrong, or flies in the face of logic (see: e.g. Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 at 443 and Yeboah v Crofton [2002] IRLR 634). It would be quite wrong to apply any such description to the judgment and reasons of this Tribunal. We do not find that there is any justification for any of the criticisms advanced by Mr Onifade. On the contrary, the Tribunal makes clear and relevant findings in fact, explains why it has preferred certain evidence where there were conflicts, has had proper regard to the issues between the parties, has directed itself by reference to the relevant law and has reached a decision on all the issues which it was plainly entitled to do.[34]In particular, we do not accept that the Tribunal should or indeed could have found that the claimant suffered a detriment in the respects alleged. Mr Morris' decision to direct the claimant to channel his enquiries through him, in writing, was entirely understandable in circumstances where he had genuine concerns about the claimant's "interim report" (which the FBU had agreed to withdraw), the decision about who was to go to Finland was that of the FBU, not the respondents, and was one with which the claimant agreed (he did not want to go), the claimant's protected disclosure postdated the point in time at which Mr Morris decided not to circulate Mr Marshall's interim report and the argument that the Tribunal had applied the wrong test to the leave issue was, we agree, misconceived since it proceeded under reference to the wrong subparagraph of the Regulations. Disposal[35]In these circumstances, we will pronounce an order dismissing the appeal.