Oudahar v Esporta Group Ltd UKEAT/0566/10/DA

Appeal against a ruling that the claimant had not been unfairly dismissed pursuant to s100(1)(e) of the Employment Rights Act 1996. Appeal allowed and remitted to the same Tribunal.

The claimant was a chef, working in the kitchen at the respondent. Work was undertaken in the kitchen which was unfinished by the time the claimant returned the next day. According to the claimant, there were wires hanging out from the walls and he refused to obey an instruction to mop the floor behind the fryers because he was concerned for his own safety. He was suspended. During the subsequent investigation a witness said the area the claimant was asked to clean was free from danger, the claimant had not alleged that he was in any danger and the claimant was dismissed in part by reason of disregard of food hygiene and in part by reason of the failure to obey instructions. S100(1)(e) of the ERA says:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if 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."

The Employment Tribunal found that the claimant's dismissal did not fall within s100(1)(e) because the respondent had investigated the contention about health and safety and preferred the account of the witness who said there was no risk. The respondent was therefore dismissing the claimant for failing to follow a reasonable instruction.

The EAT ruled that the ET had failed to apply s100(1)(e) properly. Firstly they had to consider whether there were circumstances of danger which the employee reasonably believed to be serious and imminent and whether he took or proposed to take appropriate steps to protect himself. Secondly, if the criteria were made out, the Tribunal should have asked whether the employer's sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, the dismissal must be regarded as unfair. The Tribunal did reach a conclusion on this question but it did not reach a conclusion on the first. Also, the mere fact that the employer disagreed with the claimant as to whether there were circumstances of danger, or whether the steps were appropriate, was irrelevant.

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Appeal No. UKEAT/0566/10/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 May 2011

Judgment handed down on 22 June 2011

Before

HIS HONOUR JUDGE RICHARDSON, MR D EVANS CBE, MR B WARMAN

MR K OUDAHAR (APPELLANT)

ESPORTA GROUP LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR MICHAEL REED (Representative)

Free Representation Unit 6th Floor, 289-293 High Holborn London WC1V 7HZ

For the Respondent MR MARTYN WEST (Representative)

Peninsula Business Services Ltd 5th Floor, The Peninsula 2 Cheetham Hill Road Manchester M4 4EB

**SUMMARY**

UNFAIR DISMISSAL – Automatically unfair reasons

Unfair dismissal - automatically unfair reasons - health and safety cases.

Section 100(1)(e) should be applied in two stages.

Firstly, the Tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged.

Secondly, if the criteria are made out, the Tribunal should then ask whether the employer's sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.

The mere fact that an employer disagreed with an employee as to whether there were (for example) circumstances of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that an employee should be protected from dismissal if he took or proposed to take steps falling within section 100(1)(e). Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683 considered.

**HIS HONOUR JUDGE RICHARDSON**
  1. This is an appeal by Mr Khaled Oudahar ("the Claimant") against a judgment of the Employment Tribunal sitting in London Central (Employment Judge Glennie presiding) dated 27 July 2010. By its judgment the Tribunal rejected his claim that he was unfairly dismissed by Esporta Group Ltd ("the Respondent").
  1. The appeal raises a short point concerning section 100(1)(e) of the Employment Rights Act 1996.
  1. Section 100(1)(e) provides -

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if 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."

  1. In Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683, to which we will return later, the Appeal Tribunal held that in order to construe section 100(1) compatibly with European Directive 89/391/EEC, commonly known as the Framework Health and Safety Directive, section 100(1)(e) should also be read as including the words "or to communicate these circumstances by any appropriate means to the employer".
  1. What if the employer disagrees with the employee and dismisses the employee in the genuine belief that there were no circumstances of danger? The Tribunal thought that if this was so the dismissal would not be caught by section 100(1)(e). The question we must decide is whether the Tribunal was correct.
**The background facts**
  1. The Claimant was employed by the Respondent as a chef at their health club in Swiss Cottage from 19 January 2008 until his dismissal on 12 December 2008.
  1. On 20 November 2008 maintenance work was taking place in the kitchen. The work had been carried out overnight; but in the morning it was incomplete. At about 11.30am the Respondent's manager, Ms Hoskinson, asked the Claimant three times to mop an area behind the fryers. Each time he refused to do so.
  1. The Claimant's case was that he refused to carry out cleaning in accordance with his manager's instructions on health and safety grounds. He said that in the region of the fryers there were wires coming out of the wall which had been exposed in the course of the maintenance works.
  1. On 21 November the Claimant was suspended. It was alleged that he was in flagrant disregard for health and safety and food hygiene procedures within the kitchen and that he had refused to follow his manager's instructions.
  1. A disciplinary meeting took place on 10 December. The Claimant said that on a normal day he would have cleaned the floor, but he refused to clean it on that day because the maintenance team was working on the kitchen floor and there were tools and electric wires everywhere, with the cookers pulled out, the electric wires behind the cooker on the wall unscrewed and hanging out, and a plug socket unscrewed with wires hanging out. He said Mr Killingley (the maintenance manager) was present that day and advised him to be careful around the wires and the water.
  1. The Respondent's manager Ms Devon, who took the disciplinary hearing, adjourned to investigate. She obtained a statement from Mr Killingley saying that the area the Claimant was asked to clean was free from danger, and that the Claimant did not allege that he was in any danger when he was asked to mop behind the fryers.
  1. As the Tribunal found, Ms Devon accepted the statement of Mr Killingley in preference to the Claimant's account. She found that the Claimant was guilty of insubordination by failing to comply with his manager's reasonable request. She dismissed the Claimant, in part by reason of disregard of food hygiene and in part by reason of the failure to obey instructions.
**The Tribunal's Reasons**
  1. At the Tribunal hearing the Claimant maintained his account that he had refused to comply with his manager's instructions for health and safety reasons. The Respondent continued to dispute whether any such reasons existed.
  1. The Tribunal found that the principal reason for the Claimant's dismissal was the Claimant's refusal to follow the instruction given on 20 November.
  1. The Tribunal continued as follows:

"39. The Tribunal then asked itself the question, did that amount to a dismissal that fell within Section 100. It was agreed and the Tribunal concluded that the correct analysis of the situation was to look at what Ms Devon decided and why she then decided to dismiss Mr Oudahar.

40. The Tribunal concluded that the evidence showed that Ms Devon considered Mr Oudahar's case to her that he had refused to follow the instruction for a health and safety reason, but that she then decided that she did not accept or did not believe that this was what had occurred. She preferred Mr Killingley's account of what occurred.

41. Ms Fudulska argued (rightly in the Tribunal's view) that in circumstances such as these, what the employer has to do is to investigate the contention about health and safety that is being put forward, and to investigate it to a sufficient degree. The employer cannot simply brush it to one side and ignore it. In this case, Ms Devon understood what Mr Oudahar was saying about his reasons. She looked at the layout of the kitchen and then she found another individual who had an account of the events that occurred, Mr Killingley.

42. The Tribunal concluded that it was open to her to prefer Mr Killingley's account of events. Having done that the result was that she was not in fact dismissing Mr Oudahar for a reason that fell within Section 100. The reason why she was not doing that was that in effect she had decided that what had occurred did not amount to either of the matters relied on under that section. She was therefore in fact dismissing Mr Oudahar for failing to follow a reasonable instruction.

43. The Tribunal concluded that the events at the appeal hearing did not change the situation. As already indicated, Ms Robertson could not be expected to investigate the contents of a letter that she had not been allowed to retain. The position might have been different if she had been allowed to retain that letter and had then made enquiries of Mr Squire as to his account of events, because it differs from Mr Killingley's account. However, she was not permitted to retain a copy and she did not therefore make those enquiries.

44. The claim therefore fails because it could only succeed if the reason for the dismissal was that Mr Oudahar had done one of the Section 100 protected acts. That could not be the reason for the dismissal, as the Tribunal has found that the Respondents reached a genuine decision that he had not done such an act.

45. It may be said that this does not mean that the Tribunal disbelieved Mr Oudahar when he said that the reason why he refused to mop the floor was that he was concerned about his safety. Given the decision on the central question, it is not necessary for the Tribunal to make a decision on that."

**Submissions**
  1. On behalf of the Claimant Mr Reed submitted that the Tribunal did not apply section 100(1)(e) properly. He submitted that there were three questions for the Tribunal to answer. Did the employee reasonably believe that there was a serious and imminent danger? Did the employee take (or propose to take) appropriate steps to protect himself or others? Was that the reason why the employee was dismissed?
  1. Mr Reed further submitted that the Tribunal introduced an irrelevant element to the statutory test by placing weight on the Respondent's belief that there was no danger. This, he submits, was not the statutory test. If the employer dismissed the employee for taking the steps he took, and if those steps were appropriate steps to protect himself or others when he reasonably believed that there was a serious and imminent danger, then the dismissal was automatically unfair. It was irrelevant that the employer disagreed with the employee about the existence of the danger or the appropriateness of the steps. It was sufficient if the employee's belief in the danger was genuine and the steps taken were in fact appropriate. Any other construction of the provisions would detract from the protection which section 100 was intended to give to employees in circumstances of this kind.
  1. Mr Reed referred to and relied on Balfour Kilpatrick Ltd v Acheson. He submitted that the approach of the Appeal Tribunal in that case was consistent with his submissions and inconsistent with the approach of the Tribunal in this case.
  1. On behalf of the Respondent Mr West supports the reasoning of the Tribunal. He submits that it was a complete answer to the claim under section 100 that the dismissing officer concluded that there was no health and safety issue. That being so, the reason for dismissal could not be any of the types set out in section 100. He pointed out that if section 100(1)(e) was construed in the manner for which Mr Reed contended it would be possible, at least in theory, for an employer to dismiss an employee unfairly by virtue of section 100(1)(e) even though the employee never mentioned any danger at all.
**Legislation**
  1. The following provisions of section 100 of the Employment Rights Act 1996 are of particular relevance to this appeal.

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is 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,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(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.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them."

  1. As the Appeal Tribunal held in Balfour Kilpatrick, the genesis of section 100 is to be found in the Framework Health and Safety Directive. This Directive set out a series of obligations upon employers and workers relating to health and safety at work. They were expressed to be without prejudice to existing or future national and Community provisions more favourable to protection of the safety and health of workers at work (article 1.3).
  1. Within the Directive are provisions protecting the employment of workers and their representatives who exercise health and safety responsibilities - see article 11.4 - or act in serious and imminent danger – see articles 8.4 and 8.5, which provide:

"8.4 Workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area may not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/or practices.

8.5 The employer shall ensure that all workers are able, in the event of serious and imminent danger to their own safety and/or that of other persons, and where the immediate superior responsible cannot be contacted, to take the appropriate steps in the light of their knowledge and the technical means at their disposal, to avoid the consequences of such danger."

  1. Effect is given to these provisions in the Employment Rights Act not only by the provisions of section 100 to which we have preferred but also by cognate provisions in section 44 which protect employees against detriment other than dismissal.
**Conclusions**
  1. In our judgment employment tribunals should apply section 100(1)(e) in two stages.
  1. Firstly, the tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or (if the additional words inserted by virtue of Balfour Kilpatrick are relevant) did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged.
  1. Secondly, if the criteria are made out, the tribunal should then ask whether the employer's sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.
  1. In our judgment the mere fact that an employer disagreed with an employee as to whether there were (for example) circumstances of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that an employee should be protected from dismissal if he took or proposed to take steps falling within section 100(1)(e).
  1. We reach this conclusion for the following reasons.
  1. Firstly, it seems to us to be the natural way to read section 100(1)(c)-(e). Each subsection is directed to some activity on the part of the employee: the bringing of matters to the attention of the employer (section 100(1)(c)), leaving or proposing to leave or refusing to return (section 100(1)(d)), or taking or proposing to take steps (section 100(1)(e)). In each case the statutory provision directs the Tribunal to consider the employee's state of mind when he engaged in the activity in question. In no case does it direct the Tribunal to consider whether the employer agreed with the employee.
  1. Secondly, it seems to us that this reading gives effect to the protection which Parliament must have intended to afford to an employee, having regard to the provisions of the Framework Directive which we have quoted. Section 100(1)(c)-(e) do not protect an employee unless he behaves honestly and reasonably in respect of matters concerned with health and safety. It serves the interests of health and safety that his employment should be protected so long as he acts honestly and reasonably in the specific circumstances covered by the statutory provisions. If an employee was liable to dismissal merely because an employer disagreed with his account of the facts or his opinion as to the action required, the statutory provisions would give the employee little protection.
  1. Thirdly, we think this conclusion derives some support from the judgment of the Appeal Tribunal in Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683. In that case a group of employees took industrial action and refused to return to work, believing their working conditions to be hazardous to health and safety. The principal ground of the decision was that taking industrial action did not amount to "reasonable means" of raising a health and safety concern.
  1. There was, however, an alternative argument for the employer upon which the Appeal Tribunal expressed a view.
  1. The argument was put as follows:

"50. The employers also submit that in relation to the third matter the tribunal erred in finding that the reason for the dismissal was participation in activities falling within s.100(1)(c). They submitted that the true reason was that the employers genuinely considered – whether rightly or wrongly is beside the point – that this was an attempt to extract pay for no work. They did not believe that it was primarily a health and safety issue at all. The appellants submit that if this was uppermost in the minds of the employer as the evidence plainly demonstrated, then the tribunal was not justified in concluding that the reason fell within the term of s.100(1)(c)."

  1. Later it was argued that the mere fact that the employees were failing to work was the reason they were dismissed: the employees would have been dismissed whatever the reason for taking this time off: see paragraph 65.
  1. The Appeal Tribunal rejected these submissions on the part of the employer. Elias P said:

"66. We think that this argument fails. It does not establish that the employer is not dismissing for the protected action, but rather that he would in addition also dismiss for other absences where the employees were not pursuing the protected purpose. It seems to us that he is still dismissing the workforce because they are taking the protected action even although he is not concerned about that fact and would dismiss them for absences for a host of other reasons. The point was put with his customary succinctness by Lord Hoffmann in the Khan case. He was there dealing with the question whether an employee was being victimised by virtue of not being given a reference on the grounds that he had instituted proceedings against his employer. In the course of his judgment he commented (paragraph 50):

'The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that, although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way.'

67. In our view this was the position here. The fact that the employer was dismissing because of the failure to return to work and was indifferent to the reason why the men were not at work is immaterial. He knew what the employees were asserting the reason to be. Had we found that to have been a protected reasons then we would have concluded that the dismissals were for that reason. We consider that the tribunal were right on this aspect of the case. Moreover, we consider it likely that an employer would be equally liable if he had the opportunity to find out the reason for the absence and chosen not to take it. This ought, in our view, to be the position in order to give effective implementation of the Directive. However, we did not hear argument on this point and we do not have to determine it in this case."

  1. Strictly speaking, in its reasons the Appeal Tribunal only addressed the employer who was indifferent to the reason for the employee's absence, or chose not to find out (although the submission seems to have been wider (see paragraph 50, which we have quoted). But we see no difference in principle between the employer who positively disagrees with the employee and the employer who is indifferent or does not bother to find out. In each case it seems to us that the statutory intention is that the employee should be protected if he falls within the scope of section 100(1)(c),(d) or (e).
  1. It is also true to say that this aspect of the reasoning in Balfour Kilpatrick was not necessary for the decision; but the matter was fully argued and considered, and we have no doubt that we should follow its approach.
  1. We turn finally to Mr West's submission that it would be possible, at least in theory, for an employer to dismiss an employee unfairly by virtue of section 100(1)(e) even though the employee never mentioned any danger at all. We acknowledge that this is a theoretical possibility. In practice, however, the likelihood that this would occur is vanishingly small provided that an employer carries out a reasonable investigation before dismissing. It would be rare indeed for an employee who had really taken steps to avert imminent danger to withhold that from his employer during an investigation. The closely circumscribed conditions set out in section 100(1)(e) coupled with section 100(2) and (3) provide ample protection to the employer.
  1. It follows from what we have said that we disagree with the Tribunal's analysis of the law. It was not an answer for the Respondent to say that Ms Robertson, because she preferred Mr Killingley's account, was not dismissing the Claimant for a reason falling within section 100 (see paragraph 42 of the Tribunal's reasons). This led the Tribunal to think – wrongly in our judgment – that it did not need to resolve issues of fact as to the Claimant's actions and reasons for refusing to mop the floor.
  1. We think the Tribunal should have adopted the two-stage approach which we have mentioned.
  1. First, the Tribunal should have considered whether the criteria set out in section 100(1)(e) were made out. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger or (see Balfour Kilpatrick) to communicate these circumstances by appropriate means to his employer?
  1. Second, if these criteria were made out, the Tribunal should then have considered whether the sole or principal reason for dismissal was that the employee took or proposed to take the steps in question. The Tribunal did reach a conclusion on this question, but it did not reach a conclusion on the first.
  1. The matter will be remitted, as Mr Reed on behalf of the Claimant submitted it should be, to the same Employment Tribunal to receive further submissions and make the findings required to resolve the issues in accordance with this judgment.

Published: 24/06/2011 18:49

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