Case No: A2/2009/0259

Neutral Citation Number: [2009] EWCA Civ 1437
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 10th June 2009

Before:

LADY JUSTICE SMITH

• - - - - - - - - - - - - - - - - - - - -

Between:

PHILLIPS (Appellant)

- and -

LIVERPOOL JOHN LENNON AIRPORT (Respondent)

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

• - - - - - - - - - - - - - - - - - - - -

THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

• - - - - - - - - - - - - - - - - - - - -
  

Approved Judgment
Crown Copyright©

Lady Justice Smith:

1. This, it seems to me, is a very sad case.  It is a renewed application for permission to appeal the order of the Employment Appeal Tribunal (EAT) in January of this year.  The EAT dismissed the applicant’s appeal from the decision of a tribunal sitting in Liverpool in May 2008.

1. The case is a sad one because the applicant had been employed as a firefighter at Liverpool Airport since 1982 and had plainly given good and loyal service.  One can see that because in 2006 he was given a Long Service and Good Conduct Medal.  That being so, it is sad that his employment should have been terminated, as it was, for gross misconduct in March 2007.

1. The background to the case is that, for some years prior to the events leading to his dismissal, the applicant had not been entirely happy at work.  He and other firefighters considered that one, at least, of their managers was a bully and a grievance had been raised about that.  Also the applicant had raised serious health and safety concerns, particularly about the maintenance and testing of equipment and the honesty and accuracy of the records that were kept in relation to that equipment.

1. In the late summer of 2005 the applicant had some time off work suffering from stress, which he attributed to his working conditions.  The employers were aware of the fact that he was suffering from stress and that he related it to his work.

1. Against that background the applicant was informed in early July 2006 that he was to become responsible for the oversight of the computerised electronic equipment management system (EMS).  Until that time his immediate superior had been responsible for trying to set that system up and, according to Mr Phillips, he had not been successful.  Mr Phillips himself had been responsible to some extent for the equipment and for its maintenance and testing but not for the computerised aspects of the work.

1. At this meeting at the beginning of July 2006, Mr Phillips somewhat reluctantly accepted responsibility for undertaking that work.  However, a few days later he wrote to his manager explaining why he thought that he would not be able to achieve what was being asked of him.  In particular he had had no training in the operation of computers.

1. At about the same time the applicant, along with other men, underwent an assessment of his abilities.  I have not seen the result of that assessment, but it is common ground, and was common ground at the hearing to which I shall shortly come, that some aspects of his abilities were said to require improvement.

1. On receipt of the feedback from this assessment, the applicant renewed his objection to taking on responsibility for the computerised EMS on the additional ground that his assessment had demonstrated that he was not capable of undertaking it.

1. There followed some meetings in September, in particular on 13 September 2006, at which the company insisted that Mr Phillips should undertake the responsibility for the EMS system.  Its stance was that he was capable of doing it and that the criticisms that had been made of him in his assessment did not impact upon his capability to do this work.  The applicant’s stance was that he could not do it, for reasons which he explained, and he prayed in aid the fact that his management skills had been criticised in the assessment.

1. There was an impasse between the two sides.  The meeting was twice adjourned for further consideration and the applicant was asked whether he would change his position.  At one of the meetings, I think the third, the applicant’s colleague, who was in fact a shop steward, also attended.  The applicant maintained his position, which was that he could not do the work and therefore he would not.

1. The employer took this as a refusal to obey an order and suspended the applicant pending a disciplinary process.  It was common ground at the later hearing that, if the applicant had agreed at that meeting to undertake the work or even to attempt to undertake the work, there would have been no disciplinary proceedings.

1. Disciplinary proceedings took place in March 2007 and the applicant was dismissed for refusing to obey an order.  The refusal was treated as gross misconduct and he was dismissed summarily.  He lodged a complaint at the employment tribunal alleging that he had been dismissed not for misconduct, but because he had drawn attention to various shortcomings in the health and safety procedures, in short for whistle-blowing. I have already referred to the background of those complaints and concerns.

1. The employment tribunal held that the true reason was that the employers reasonably believed that the applicant was guilty of gross misconduct, because he had refused to comply with a lawful order.  The tribunal further found that the dismissal for misconduct was fair.  They said that the employer had acted reasonably in treating the misconduct as so serious as to warrant summary dismissal.  They went further and held that the misconduct was in fact gross misconduct and warranted summary dismissal and they dismissed the applicant’s claim for wrongful dismissal as well as the claim for unfair dismissal.

1. The applicant appealed to the EAT.  He lodged his notice in person although he had been represented by counsel at the employment tribunal hearing.  He obtained the assistance of counsel for the EAT oral hearing, but nonetheless the EAT dismissed all the grounds of appeal.

1. The applicant now seeks permission to appeal to this court. Elias LJ refused permission, on consideration of the papers, saying that the issues were all questions of fact and that no error of law had been identified.  It must be stressed, as I am sure Mr Phillips understands that, in the jurisdiction of unfair dismissal claims, all issues of fact are strictly for the employment tribunal and an appeal lies to the EAT and to this court only on a point of law.

1. The applicant’s first and main argument is that the employment tribunal and the EAT had not understood the difference between a refusal to work, which he accepts is misconduct, and an assertion that one is unable to do the work.  I do understand his point, but I am afraid that it is not a good one.  If an employee says, “I do not believe that I am capable of doing this work and I will therefore not make the attempt”, that is tantamount to saying that he refuses to do the work.  In effect the employee is putting his own views of his capability above the view of the employer.  If employees could do that, employers would be deprived of the ability to manage the business.  The only possible response for the applicant at the end of the meetings on 13 September was to say “All right, I have grave reservations about my ability to do this job satisfactorily and I want to put on record that I will need training and support, but I will do my best.”  If he had said that, he could not have been dismissed or at least not fairly.  Instead this applicant asserted that he could not, and therefore he would not, attempt the job further.

1. Faced with that attitude, it is hard to see what the employer could do other than to dismiss the applicant.  And that is so even regardless of the fact that the applicant was a long-serving employee and had been suffering from stress apparently related to his work.

1. All the other applicant’s points are, I am afraid, hopeless in that they entail an attempt to go over the evidence that was adduced at the hearing.  The applicant had hoped to be able to obtain disclosure of some documents which would have enabled him to demonstrate that his concerns about health and safety were valid.  He had been refused disclosure following an application under the Freedom of Information Act, and he is still now involved in bringing an appeal before the Information Commissioner.  The material that he hoped to produce was not available at the ET hearing.  Indeed I notice that his Freedom of Information request had been made only a short time before.  I do not know whether there was any request for an adjournment, but if there was, and if it had been refused that could not give rise to a ground of appeal.

1. The applicant complains with some justification that the employment tribunal misunderstood the position as far as his stress was concerned.  The position was that he had been suffering from stress before these events took place and he suffered a recurrence following them.  The ET seems not to have fully understood the position but, even if they had properly understood the position, I cannot see that it would have made any difference to the decision.  The applicant was putting his views of his ability to do the job above those of the employer and that was an intolerable situation.

1. The applicant complains that, at the appeal hearing following his dismissal, the airport director relied on the notes of the investigation rather than on a signed statement which was at that time in existence and which Mr Phillips claims was suppressed.  I can understand that this may have been annoying for him and I have no doubt that the point was taken at the hearing.  It appears that the employment tribunal thought little of the point, because they do not mention it in their decision.  I can understand why.  The gist of what had been said on the relevant occasion, 13 September, was clear whether one relied on the notes of that meeting or on the statement.   Mr Phillips had said that he couldn’t do the job and therefore he wouldn’t.  I am afraid there is nothing in that point.

1. The applicant complains that the employment tribunal failed to take account of the fact that he had previously asked for training in respect of the EMS work but none had been given.  Even if that is so, and I accept that it may well be, the applicant could not be justified in putting his own view of his capability above that of his employer.  He was not entitled to refuse because he thought he had not been trained.  This was not a situation in which his lack of training was going to be the immediate cause of any danger to anyone.

1. As I have said, this is a sad case where the applicant’s own attitude has led to his dismissal.  It does not matter whether the applicant’s unwillingness to undertake the EMS work was due to pique, as the employer thought and as the ET accepted, or whether it was due to a genuine belief by the applicant that he was unable to do the job.  He put his own view above that of the employer.  No employer can be expected to put up with that.  I am afraid dismissal was inevitable.

1. Mr Phillips, an appeal to this court has no prospect of success and for that reason I have to refuse your renewed application.

Order: Application refused