Piggott Brothers & Company Ltd v Jackson
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NICHOLLS,LORD JUSTICE STUART-SMITH |
| Judgment Date | 09 May 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0509-5 |
| Docket Number | 91/0481 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1991 |
[1991] EWCA Civ J0509-5
The Master of the Rolls
(Lord Donaldson)
Lord Justice Nicholls
Lord Justice Stuart-Smith
91/0481
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE KNOX)
Royal Courts of Justice
MISS LYNETTE WARREN (instructed by Messrs. Raggett Tiffen & Harries, Ongar, Essex) appeared for the Appellants.
MISS JANE DAVIES (instructed by Messrs. Alsop Wilkinson) appeared for the Respondents.
The three appellants were employed by Piggott Brothers & Co. Ltd. as machinists on their caravan awning floor. They were employees of relatively long standing. Mrs. Jackson joined the company in September 1976, Mrs. Wood in September 1978 and Mrs. Mortlock in March 1974.
In January 1988 the company received a supply of PVC coated material from a Belgian company called Sioen. The material gave off unusual fumes and those working on the factory floor were seriously affected. Most of them experienced symptoms of dry throat and mouth, sore eyes, sore gums, irritation of the nose and dizziness. The company had been dealing with Sioen since 1982 without cause for complaint and the only apparent difference in the new material was that it was grey in colour rather than beige as had originally or brown as had later been supplied.
The employers took various measures designed to find out what was the cause of the problem and to minimise its effects by increasing the ventilation in the work place. They also consulted the Health and Safety Executive. In April 1988 the employment medical adviser to the Executive visited the factory and, taking a more serious view of the situation than an inspector who had previously attended, advised some of the workers including the appellants to consult their family doctors. They did so and were all off sick for some weeks. In early May they returned to work, but refused to continue work on materials from Sioen. Temporarily they were given work in other areas.
Meanwhile there were further visits from inspectors from the Health and Safety Executive and new and improved ventilation was brought into operation. The inspectors were unable to identify what had been the cause of the trouble, but expressed themselves as satisfied that the problem no longer existed. It had been a one-off incident.
The appellants were not reassured and when in July they were asked to resume work on the caravan awning floor, they refused to do so if they were expected to work with grey or brown materials supplied by Sioen. The employers urged them to reconsider their attitude and gave them time for reflection but, when they persisted, gave them notice of dismissal.
The appellants then applied to the London (North) Industrial Tribunal claiming that they had been unfairly dismissed. That they had been dismissed was not in doubt. Nor was there any serious dispute as to the reason for that dismissal. It was the employees' conduct in refusing to resume work on Sioen materials. Whether the appellants were or were not unfairly dismissed turns solely upon the Industrial Tribunal's answer to the question posed by section 57(3) of the Employment Protection (Consolidation) Act 1978, namely:
"Whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating [that refusal by the appellants] as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."
This must be amongst the commonest, and probably is the most common, issue which falls to be decided by industrial tribunals. This is not to say that resolving it is always easy. It calls first for an examination of the employee's conduct and an evaluation of that conduct in the light of circumstances as they existed or as the employee reasonably thought or feared that they existed. Having decided where the employee's conduct fell within a spectrum beginning with the wholly reasonable and ending with the wholly unreasonable, the industrial tribunal then has to evaluate the employer's reaction to that conduct and ask itself whether, in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the employee's conduct as a sufficient reason for dismissing him or her. In so doing it will have to consider what alternative courses of action were open to the employer—should he, for example, not have dismissed at all or should he have taken further steps to persuade the employee to desist from such conduct and only have dismissed if that proved ineffective. It should not be forgotten that the issue is whether the particular dismissal, at the time and in the circumstances in which it took place, was reasonable—not whether a dismissal at a later date was likely to have been reasonable.
One has only to state the issue for it to be at once apparent that in some circumstances one industrial tribunal might decide the issue one way and another the other way. This is inherent in the system which entrusts to industrial tribunals the exclusive responsibility for finding and evaluating all issues of fact. Reasonableness is to be categorised as a mixed issue of fact and law, but the factual element predominates.
The London (North) Industrial Tribunal heard evidence from the appellants, from the employers and from witnesses as to fact and opinion (expert evidence) called by the employers. It concluded that the appellants were unfairly dismissed and later assessed compensation for that dismissal.
In giving its reasons, which were succinctly but wholly adequately stated, the tribunal found the facts in more detail than I have found it necessary to set them out and concluded:
"18. It is clear that the applicants were dismissed. We find that the reason for the dismissals was the refusal of the applicants to continue to work in the space-maker department as long as grey or brown PVC materials from Sioen were used. This is a reason relating to conduct and as such it is a potentially justifiable reason.
19. We say 'potentially justifiable', because we have next to consider whether the employer acted reasonably in accordance with section 57(3) of the Employment Protection (Consolidation) Act 1978. We think that in the context of this case what we have to decide is whether the employer took reasonable steps to deal with the problem created by the materials, and whether the applicants were acting reasonably in refusing to work with those materials. The employer certainly took a number of steps to deal with the matter as set out in the previous paragraphs of this decision, but they never got a definitive answer from Oakwood or from the Health and Safety Executive or from anyone as to what was the cause of the symptoms. We think that that was a failure on the part of the employer to take a reasonable step. We further think that in the absence of the discovery of the cause of the symptoms the applicants were reasonable in declining to work with grey or brown materials from Sioen, since so long as the cause was unknown it could not be known that no harmful, secret, long-term adverse effects on their health were inherent in the use of the materials. We find that the dismissals were unfair."
The employers appealed to the Employment Appeal Tribunal. It is similarly constituted to an industrial tribunal in the sense that it consists of two lay members with experience of both sides of industry and a legally qualified Chairman or Presider who, in the case of the E.A.T., is a judge of the High Court or of the Court of Session. Its official title incorporating the word "Tribunal" could mislead in two respects. First, unlike an industrial tribunal, it is a superior court of record (see paragraph 12 of Schedule 11 to the 1978 Act). Second, again unlike an industrial tribunal, it has no jurisdiction to decide any issues of fact. Appeal to it lies only on questions of law. This is not to say that the lay members do not have a vital role. They provide the judge with knowledge of the industrial background against which the relevant legislation was enacted and play a full part in the decision-making process. They are indeed entitled to leave the judge in a minority of one on the construction of a statute, although they would no doubt think twice before doing so. The importance of their contribution can hardly be overstated where it is argued that no reasonable industrial tribunal could have reached the decision under appeal.
Mindful, no doubt, of the limitations upon the jurisdiction of the E.A.T., the employers served a notice of appeal paragraph 6 of which opened with the words:
"The grounds upon which this Appeal is brought are that the Industrial Tribunal erred in law in the following ways:-"
There then followed five pages of particulars, few of which were recognisable as questions of law. However, they included an allegation that, as the E.A.T. was later to find, the industrial tribunal made a finding which no reasonable tribunal properly directed could have made. In other words, the industrial tribunal's decision was perverse. To that I will return.
Following receipt of that notice of appeal, the E.A.T. made a direction that only the notes of evidence of the expert witnesses be transcribed for the purposes of the appeal. Let me say at once that it is very important that industrial tribunals should not be burdened with transcribing notes of evidence which are irrelevant to any appeal on a question of law. However, I fail to...
To continue reading
Request your trial
-
Hepburn v Chief Constable of Thames Valley Police
...the school authorities." 48 The question in all these cases, as Lord Donaldson made plain in the context of employment law in Piggott Brothers Limited v Jackson [1992] ICR 85, 92 is whether the reviewing court can characterise the decision under challenge as "certainly wrong", "perverse" a......
- St Basil's Centre Ltd v McCrosson
-
Park Cakes Ltd v Shumba and Others
...as a reliable witness. She prays in aid cases on perversity, such as Neale v Hereford and Worcester County Council [1986] IRLR 168, Piggott Bros v Jackson [1991] IRLR 39 and Stewart v Cleveland Guest (Engineering) [1994] IRLR 440 and Yeboah v Crofton from which we have already cited." 41 As......
-
Mr Martin James Scott v Kenton Schools Acadmey Trust
...and the Employment Appeal Tribunal (“the EAT”) should not interfere. See Piggott Brothers and Company Limited v Jackson, Wood & Mortlock [1992] ICR 85 In relation to reasonable adjustments and ground four, the Tribunal reached a properly reasoned decision, that it was entitled to reach for ......
-
Legal aspects of employment change and their implications for management
...[1989] IRLR 37.Legal aspects of employment change 83Blackwell Publishers Ltd. 2 001. P Bork 1989 [1989] IRLR 41.Piggott v Jackson 1991 [1991] IRLR 309.Polkey v A E Dayton (Services) Ltd 1987 [1987] IRLR 503.Port of London v Payne 1994 [1994] IRLR 9.Port of Sheerness v Brachers 1997 [1997] ......