Appeal No. UKEAT/0670/04/ZT & UKEAT/0279/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2005

 
Before
HIS HONOUR JUDGE ANSELL
MR D BLEIMAN
MR D CHADWICK

 

MR S HARVEY	APPELLANT

 

 
(1) THAMES VALLEY FOODS (2) STONEGATE FARMERS LTD	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

PRELIMINARY HEARING – EX PARTE

 

 

 

 
	APPEARANCES

 

For the Appellant	MR S HARVEY
(In Person)	

SUMMARY

Public Interest Disclosure – did Tribunal come to wrong decision as to the employer’s knowledge as to the employee making a disclosure.
 
New evidence emerging in relation to employer’s failure to make reasonable adjustments and offer lighter work – effect on Tribunal’s decision.

HIS HONOUR JUDGE ANSELL
 
1.	This is a leave to appeal hearing brought by Mr Harvey who seeks to challenge an original Decision of the Employment Tribunal which followed a hearing in June 2004; the decision was promulgated on 29 June.  There was then review hearing dealing with one particular issue of detriment which followed from a preliminary direction from this Court and that review hearing was held on 30 March 2005 and that Decision was promulgated on 1 April.  We had to deal with a considerable amount of documentation in the case and we hope that Mr Harvey feels and he did in fact confirm during the hearing that he felt that we had got to grips with the nub of the case. We have been helped by his oral submissions today.
 
2.	His written submissions to us as I have said are quite lengthy and we have tried to cut through those and in particular relate them to his original grounds of appeal which were if I may say so rather more focussed.  Within the submissions he has really raised a number of further matters relating to evidence which we believe he now understands are really no more than asking us to take a different view of the facts to that taken by the Tribunal.  As we have explained to him unless he can mount a perversity argument we cannot allow this matter to proceed forward.
 
3.	We will deal briefly with the facts and indicate those areas where we are prepared to let the matter proceed to a Full Hearing but they are quite limited in their extent.  The background facts were that he had been employed as an HGV driver at the Seisdon site since August 1991 and the Respondents took over the site in August 1999.  Since that time it is quite clear that he has always been very interested in health and safety issues and in November 2000 he became the drivers’ representative.  There was no separate health and safety committee and thereafter he raised a number of issues.
 
4.	On 14 October 2001 he suffered an injury at work and indeed was off work until the end of the following April.  The Tribunal records however that notwithstanding his absence from work he was still certainly writing letters about health and safety matters but within those letters he also began to write in very strong terms about Mr Watkins, the Transport Manager.  The background appears to have been that he blamed Mr Watkins for health and safety issues and in particular for the injury that he sustained at work.
 
5.	On the other side of the coin the employers eventually when he got back to work commenced disciplinary proceedings both in relation to what he was writing about Mr Watkins and indeed also in relation to health and safety matters apparently being alleged that he had not followed procedures when the accident took place.  The sort of language he used about Mr Watkins was that he was in gross dereliction of duty, incompetent and negligent and the Tribunal records that the Appellant went on writing in that sort of vein.  He was notified that the employers wanted him to attend the disciplinary hearing on 29 April 2002.
 
6.	On that date he actually returned to work.  Whilst he was off work there were certainly some discussions about whether he was able to attend for light duties and one of the issues he raised with them was to return to work on the basis that he would undertake route planning but that was rejected and the only light duties offered at some stage were washing down vehicles but otherwise nothing really was offered and he was told in March that no light duties existed.
 
7.	At the end of March he was told that he would not be allowed to return to work until an independent medical assessment had been carried out.  That did not take place and on 3 April Mr Harvey wrote to Mrs Largue, Personnel Officer indicating that the GP had signed him off as being fit to go back to work.  That eventually was confirmed by the GP but not until the end of May although the employers had asked for a letter from the GP much earlier on.  On 29 April he returned to work and there was an incident with Mr Quinney, the Assistant Transport Manager relating to a defective lorry that this Appellant was asked to drive and the report according to the Appellant was that Mr Quinney told him to “fuck off up the road” and as a result the Appellant decided to leave work.  This resulted in disciplinary proceedings and a dismissal resulting from unauthorised absence from work.  He succeeded in his unfair dismissal claim before the Tribunal.  They held the dismissal was procedurally unfair particularly as Mr Quinney was not available to give evidence before the disciplinary hearing and in any event they felt that the punishment too severe for the out did not meet the offence which they described as not gross misconduct.
 
8.	We should have also mentioned that towards the end of March in one of his letters Mr Harvey had threatened that if health and safety matters were not sorted out he would consider “join those concerns to other professional organisations without fear or favour”.  He did in fact go to see both the fire department and the health and safety executive who paid visits to the employers within a matter of two or three weeks.  One of his complaints is that he suffered detriments because of his work as a health and safety representative and more particularly because of the whistleblowing that he says must have been apparent to the employers by the end of March.  The two authorities visited maintained that they had kept the source of their complaint anonymous.
 
9.	At the original hearing the only detriment that was dealt with was the suggestion that the disciplinary proceedings fast, tracked as Mr Harvey called them, in relation to the abuse of Mr Watkins only took place because of the continuing work that he was carrying out as a health and safety representative.  That was rejected by the Tribunal who formed the view clearly that that disciplinary hearing took place primarily because of the manner in which he was writing abusive letters about Mr Watkins.  The review hearing however dealt with a further complaint of detriment namely that as a result of the visit by the health and safety executive formal elections were held for the position of health and safety representative and those elections took place shortly before Mr Harvey returned to work and he therefore complained that he suffered the detriment because he was not able to put himself forward properly as a candidate for those elections.  That was upheld by the Tribunal and he was awarded the sum of £750.00 under the Vento guidelines to represent the fact that he could not act as a representative up to 29 April,  that is until the date when further events took place that we have already described involving Mr Quinney.
 
10.	In terms of disability Mr Harvey has persuaded us that there is an issue to go forward in relation to the issue of whether of not the employers made reasonable adjustments whilst he was off sick in terms of possibly offering him a position of transport manager or assistant transport manager.  The employers’ evidence which the Tribunal accepted was that there was not a full time position of transport manager but that that one or other of the drivers may have spent up to 20% of their time on these administrative functions.  
 
11.	Mr Quinney had signed a statement that he had in fact been given the job of assistant transport manager during this period.  Mr Quinney did not give evidence before the Tribunal.  He was not available on the day.  Mr Harvey had asked for an adjournment because of his absence but that was not granted although the Tribunal record that they have looked at Mr Quinney’s statement but did not feel the need for him to attend as a witness.  The Tribunal formed the view that there was not an alternative position available to him; at most it was small amount of work that was being made available to those other drivers or warehousemen who were already at work.
 
12.	Mr Harvey has now found and obtained a statement made by Mr Morse in the course of Employment Tribunal proceedings brought by Mr Quinney and in that statement it does appear that Mr Morse is now saying that which Mr Quinney was saying originally is that the position of transport manager was indeed given to Mr Quinney a date not specified in Mr Morse’s statement but it appears it likely that it may well have been during this period.  It seems to us therefore that there is a real issue here for a Full Hearing to explore in relation to this further evidence as to whether or not the original Tribunal were misled and in any event whether there was an alternative position that could have been offered to Mr Harvey so as to comply with possible obligations under Disability Discrimination Act.  So we will allow that issue to move forward.  We have also given permission for the further evidence in terms of Mr Morse’s supplementary statement to be produce evidence before the Full Hearing.
 
13.	There are further issues that Mr Harvey advances which were not permitted to go forward.  That is firstly whether as a result of his absence from work he suffered a detriment in terms of him not being able to carry out health and safety functions.  From our reading of the Tribunal decision that does not appear to have been an issue that he advanced before the Tribunal and effectively he concedes that.  Indeed the Tribunal made findings as we have already indicated that on occasions whilst absent from work he was still writing letters about health and safety matters whilst he was unwell and indeed there was a particular letter before the Tribunal from the employers to him which specifically allows him to return to work to deal with drivers matters.  So we will not allow that matter to go forward as it was not an issue before the Tribunal.
 
14.	Equally he raises an issue as to whether or not adjustments should have been made on his return to work.  The Tribunal record simply that the GP had signed him fit for work on 3 April.  There is an issue as to whether or not a member of staff spoke to the doctor before he returned to work but in fact the Tribunal have made no findings about that relying particularly of what they were told by the employee himself and indeed they make a finding that he returned to work at 6.00 am on 29 April apparently ready and willing to take on his former position.  Again it does not seem to us that it was alleged that adjustments should have been made on 29 April and we would not allow that matter to go forward.
 
15.	In relation to the connection between the letter he wrote in March and the visit by the Health and Safety Executive some two or three weeks later this was dealt with by the Tribunal at paragraph 70 in which they found no evidence to indicate that the Respondents knew that the Applicant was behind the complaints and at paragraph 87 their conclusions are that there was no evidence the Respondents were aware that he was the source.  The Applicant has failed to make any connection between those disclosures of the treatment he received from the Respondents.
 
16.	Bearing in mind the letter that was written three weeks earlier in March we would have expected the Tribunal to make some comments about that letter and specific findings as to whether or not the employers saw that letter and what view they took of it.  We understand it was a letter that was canvassed in the course of evidence and whilst we must not be seen to be nick picking our way through each line of the Tribunal Decision we do feel that there is the potential for a perversity argument on that matter.  We will allow that issue to proceed.
 
17.	Finally in terms of the award of injury to feelings of £750.00 a suggestion is made that that is not a sufficient amount particularly bearing in mind it is now said that potentially his employment could have continued after 29 April where it not for the subsequent events concerning his unfair dismissal.  Again however, from our reading of the Remedies Decision it does not seem to have been argued that his award of £750.00 should have been increased because of the potential that his employment would in fact have continued where it not to be unfair dismissal and again we are not prepared to let that matter proceed.
 
18.	So it follows therefore that two issues on which we are prepared to let Mr Harvey proceed with this case relate to the offer of alternative work as a reasonable adjustment and the connection between the letter he wrote in March and the visits by the Health and Safety Executive some weeks later and whether as a result any detriment was suffered.  The matter can proceed to a hearing.  It will only be half a day – Category C.