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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Parkins v. Sodexho Ltd [2001] UKEAT 1239_00_2206 (22 June 2001) URL: https://www.bailii.org/uk/cases/UKEAT/2001/1239_00_2206.html Cite as: [2001] UKEAT 1239_00_2206, [2002] IRLR 109, [2001] UKEAT 1239__2206 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J ALTMAN
MS J DRAKE
MRS D M PALMER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | THE APPELLANT IN PERSON |
For the Respondent | MR A LOCK (Representative) Messrs Beachcroft Warbroughs Solicitors 10-22 Victoria Street Bristol BS99 7UD |
JUDGE ALTMAN
"The manner in which Mr Parkins was dismissed was entirely unsatisfactory."
"Did you have problems with being supervised in the evening?"
Answer:
"No"
Question:
"What was the protected disclosure?"
Answer:
"I informed my Manager that not having a Supervisor in the evening and requiring me to phone supervisor off site and to inform her of when I leave and of any problems was an infringement of my contract and Health & Safety at Work Act 1974 and relevant Regulations and Health & Safety Policy.
Question:
What did you say? What words were used?"
Answer:
"I said I can't take instructions from a supervisor who is not on site, but I continue to take them from Richard and other managers (Alan). Alan would check the restaurant."
"(i) This section applies where, on hearing an employee's application for interim relief, it appears that it is likely that on determining the complaint to which the application relates the Tribunal will find the reason (or if more than one the principal reason) for his dismissal is one of those specified in Section 100 (1) (a) and (b), 101 A (d), 102 (1), 103 or 103 A."
"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 principle reason) for the dismissal is that the employee made a protected disclosure."
That, under Section 129, as quoted in the decision of the Employment Tribunal, entitles a person complaining of a protected disclosure to interim relief and of course it is simply necessary to show a reasonable belief that the health & safety of any individual has been, is being or is likely to be endangered.
"(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject."
The Employment Tribunal then turned their attention to the meaning of that. They say this in paragraph 10:
"In relation to paragraph (b) he says that by instructing him to telephone his day supervisor Mr Daniels was in breach of the contract of employment. We were not shown the contract of employment or the job description of Mr Parkins and we cannot say whether or not Mr Daniels was in breach of contract in instructing Mr Parkins to telephone to another manager rather than report directly to persons on site. However, it does not seem to us that an allegation of breach of contract of this nature could possibly fall within the language of Section 43B (i) (b) – i.e. failure to comply with any legal obligation. While everybody is obliged to comply with contracts of employment, we do not consider that an allegation of breach of an employment contract in relation to the performance of duties comes within the letter or spirit of the statutory provision."
"This includes a breach of any statutory requirement; contractual obligation; common law obligation for example negligence, nuisance, defamation or an administrative law requirement."
"It appears to us that the real reason why Mr Parkins was dismissed was nothing to do with health & safety or breach of contract – it was to do with the relationship between Mr Parkins and Mr Daniels, that Mr Parkins' manner and attitude to Mr Daniels was one which Mr Daniels found unacceptable and having had a row with Mr Parkins on 19 April, Mr Daniels concluded that Mr Parkins would have to go."
"He (the Appellant) was dismissed as he categorically stated that he would not take instructions from either his Supervisors or his Manager.
There were no issues of health & safety raised by Mr Parkins at any time during his employment or his dismissal.
He was never asked to carry out any duties or actions which were contrary to the Health & Safety at Work Regulations."
"All we have to do is to decide whether it is likely that when the case comes to a full hearing the Tribunal will conclude that the reason, or principal reason, for Mr Parkins' dismissal was one of the special reasons set out in Section 129 (1)."
However they went on to reiterate really their finding of fact:
"It is our unanimous view that none of the decisions set out in Section 129 (1) – including the health & safety reason – was the reason why Mr Parkins was dismissed and therefore we refuse his application for interim relief."
"entirely without merit"
Again, we are driven to conclude that, as the basis for the decision on interim relief was based on an incorrect legal foundation, it must follow that the basis that this Tribunal assessed the merits of the application must also be erroneous. Furthermore, the Employment Tribunal gave as their reasons their agreement with the Respondent's representative:
"that (the Appellant's) application is frivolous and vexatious in the sense that it has no reasonable prospect of success"
Of course at the time of this hearing the Employment Tribunal's constitution and Rules of Procedure Regulations 1993 provided a totally different procedure where it was believed that there was no reasonable prospect of success, namely a costs warning or a requirement for a deposit to be paid under Regulation 7 in advance of the hearing. Nowadays courts are entitled to strike out claims or make orders on the ground that there is no reasonable prospect of success as being a definition of frivolous or vexatious. However, at the time of this hearing it was only where the Employment Tribunal came to the conclusion that an application was bound to fail that they would be entitled to regard it as frivolous or vexatious.