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Archive for June, 2020

Contributory negligence in the workplace

Health and Safety and Contributory Negligence

Employment lawyers in Clifton, Bristol, have compiled a database of leading cases dealing with contributory negligence in the context of health and safety at work.

Contributory negligence means, in summary, that a person who suffers injury because of the fault of another person may have his/her compensation reduced where he/she has contributed to the cause of the injury.

Leading cases include:

Barclays Bank plc v Fairclough Building Ltd (No.2) (1995)

B engaged F as contractors to carry out maintenance work on two industrial warehouses occupied by B. The work of cleaning the asbestos roofs of the warehouses was subcontracted by F to C and by C to T. Neither T nor C had sufficient experience of the health risks of cleaning asbestos roofs. T used a high-pressure hose for the work. This caused asbestos slurry to enter the warehouses and to dry out, resulting in dangerous levels of asbestos contamination. An environmental health officer served a prohibition notice. Remedial works estimated to cost £4 million were required. The issue in the Court of Appeal was the extent of the liability of T and of C. The decision was as follows:

  • Neither T nor C could avoid liability for having failed to exercise reasonable care and skill.
  • Having regard to the weight of expert evidence on the publication of information about the risks of working with asbestos, any person cleaning asbestos with a high pressure hose had a duty to avoid extensive contamination of the surrounding area.
  • T’s liability to C should be reduced by 50 per cent by reason of C’s contributory negligence. This reflected the close relationship between T and C.

Fishwick v Lin Pac (1994)

F’s work involved loading large reels of paper into a machine. During the course of this operation, his thumb became trapped in the machine and was crushed. He claimed compensation from the employers.

The county court found that the accident had been entirely F’s fault. He, and other employees, had done the same job hundreds of times with no accidents. F had been in control of the operation and his injury had been caused by his own carelessness. It was possible, and usual, to do the job properly without risk to he arms or hands.

Sullivan v HWF Ltd (2001)

S was a director, shareholder and employee of H Ltd. His responsibilities included H Ltd’s health and safety procedures, including the preparation and implementation of the company’s safety assessments and work methods. One risk assessment had warned of the danger of bolts being left lying on the floor. S knelt and tripped on a bolt left on the floor by a colleague. He fell from a platform and suffered soft tissue injuries to his neck and left shoulder, a fractured elbow and a head injury. He claimed compensation from H Ltd. On behalf of the company it was argued that because S was responsible for health and safety matters, any breach of the legislation was his own fault. It was also argued that S’s level of contributory negligence was 100 per cent.

S’s claim succeeded. He had impressively and carefully prepared H Ltd’s health and safety documentation. It was his responsibility to ensure that methods and assessments were made and that H Ltd’s employees adhered to them.

S could not be expected to supervise workers for every minute of the day. There was a duty on all employees to take care of their own safety and that of fellow employees. S was not responsible for the presence of the bolt. S was contributorily negligent to the extent of one third because he had failed to see the bolt when he knelt down.

Binks v Securicor Omega Express Ltd (2004)

B was employed by D to load and unload parcels from box vans at its premises. The unloading process included the use of a retractable conveyor belt which moved into the rear of the van and speeded up the process of unloading. When the unloading was complete, the belt was retracted out of the van and B would also leave the van. The van driver would then be signalled to drive off. B alleged that he was injured when the belt was removed and the van drove off without warning, causing him to fall to the ground. On behalf of the employers it was argued that B had been riding on the belt as it was retracted, contrary to express prohibition, and that he had fallen off. This version of events was based on an entry in the accident book.

B claimed compensation for his injuries. At first instance his claim failed. Before judgment it was submitted on behalf of B that even if his version was disbelieved, he was entitled to put an alternative case in negligence, based on the employer’s version of events. The county court judge refused to allow this application on the basis that to do so would prejudice the employers, because they would have approached the evidence differently if they had known that the alternative case was to be put. B appealed to the Court of Appeal.

The appeal was allowed. The Court made the following points:

  • There was nothing objectionable in principle in a claimant putting forward a case based on material relied upon by a defendant, so long as there was evidence in support of it.
  • The judge’s approach had been flawed. No regard had been given to the wider interests of justice and how that could be achieved by consequential provisions as to costs. The issue of fact was whether the accident happened in the way described by the claimant or the defendant and permission to amend the statement of case should have been given, because there was no significant prejudice to the defendant.
  • Liability was found against the employer for driving off without giving proper warning to B. B was also to blame for riding on the conveyor belt, which he ought to have known was a foolhardy thing to do. B’s contributory negligence was assessed at 50 per cent.

Tasci v Pekalp of London Ltd (2001) 

T was employed by P as a wood machinist. He was a Kurdish refugee who spoke little English. He told P that he had experience of woodworking machinery. This was untrue. A director of P, who was aware of T’s background, showed him how to operate a bench-mounted circular saw, gave him seven specific safety instructions and walked past the machine at half-hourly intervals to ensure that T was following his instructions. Three weeks later T injured his left hand while operating the saw. He claimed compensation from P in negligence and for breach of statutory duty. At first instance it was held that P was not liable. The accident had occurred because T had operated the machine from the wrong side. T appealed to the Court of Appeal.

The appeal was allowed. Given T’s background, the degree of instruction and supervision and the system of work fell short of what was required by the common law.

It was not sufficient to have demonstrated how the work should be done. Explanation had to be given as to why it was to be done in that way and what dangers might arise if it was not done in that way. T must have been aware of the danger in which he was placing himself in working the machine from the wrong side and had to bear a substantial share of the blame for his accident which would be assessed at 60 per cent.         

Jayes v IMI (Kynoch) Ltd (1984)

J, a very experienced worker, used a rag to wipe grease from a moving part of a power press machine. The rag became caught up. He tried to pull the rag out bt the machine pulled his finger in and he lost the tip of his finger. He admitted that he had done a very foolish thing, a “crazy thing”. At first instance, the court found that there had been a breach of statutory duty but J had ben 100 per cent contributorily negligent. On appeal to the Court of Appeal, the appeal was dismissed.

Gunter v John Nicholas & Sons (Port Talbot) (1993)

G, an experienced wood machinist, operated the unguarded cutter of a woodworking machine which carried on revolving for some time after the stop control had been operated. As a result, he suffered injury to his hand. He claimed compensation from his employers on the basis of their negligence. At first instance the court found that the employers had been negligent in that they had failed to fit an effective stopping mechanism to the machine. G’s contributory negligence was assessed at 25 per cent. G appealed to the Court of Appeal.

That Court ruled that, in the light of G’s familiarity with the machine and the extent of his experience, the contributory negligence assessment had been wrong. G had been two-thirds to blame and contributory negligence should be assessed accordingly.

King v Smith and Another (1994)

K, an employed window cleaner, suffered serious injuries when he fell from a second floor window while leaning it. He had not been able to clean the window from the inside, nor to use the “housemaid” position (sitting on the sill with his legs inside the room). He stood on the outside sill, lost his balance and fell.

The employer’s rules stated that when employees were working on the outside of windows more than six feet above ground, then such windows must be cleaned as far as possible from the inside or by sitting on the window sill. If windows could only be cleaned by standing on the outside sill, then safety belts should be used. K claimed compensation from his employer.

The Court of Appeal found as follows:

  • The employer was 70 per cent to blame.
  • The rules were inadequate. They should have stated that employees were prohibited from going onto outside sills where windows were so constructed that they could have been cleaned from the inside if working properly.
  • It was well appreciated that standing on an outside window sill was a dangerous practice and the main cause of serious accidents involving window cleaners.  

Health and safety and contractors: leading cases

HEALTH AND SAFETY, CONTRACTORS AND EMPLOYEES

Employment lawyers in Bristol, particularly those based in Clifton, have been concerned to keep up with developments in the law related to health and safety in relation to employees and contractors. This area of law is fast-developing. The following selection of decided cases illustrates the evolving attitudes of the courts to this issue.

K R Page v J A Read (1985) Court of Appeal

A contractor who hires a self-employed subcontractor to undertake work does not owe any duty of care to supervise the subcontractor’s work and to volunteer additional safety equipment or advise a safe method of work. The duty of a contractor to a self-employed subcontractor is lower than that owed by an employer to an employee and is limited to making reasonably sure that any equipment voluntarily offered is reasonable safe.

P was a self-employed painter and decorator. He was hired by R, who was the main contractor on a house building site, to paint houses. No scaffold was available to improve the safety aspect of the work of painting the fascia boards of a house. P sat on the roof and leaned over to do the painting. He fell and was injured. He claimed compensation for R’s alleged negligence in failing to provide proper scaffolding.

The Court of Appeal made the following points:

  • To succeed in his case, P would have to show that he was owed a positive duty of care to all intents and purposes co-extensive with that owed by an employer to an employee.
  • There was no authority for such a proposition and the court would not introduce it now. The general law of negligence compelled all people, contractors and subcontractors included, to refrain from doing things which they ought reasonably to know will harm their neighbour (in the legal sense, this is any person likely to be affected by their activity).
  • Under this principle, a contractor who volunteers the use of equipment to a subcontractor must take reasonable steps to ensure that it is safe for that particular use. But apart from this, there is no positive duty of supervision or to offer safety equipment when this might be appropriate. The contractor’s duty to the independent contractor was in this sense lower than that owed by an employer to an employee.
  • Apart from contract, there was no obligation to provide equipment for an independent contractor. If the contractor wished to carry out the work in a risky way, that would be a decision which he was entitled to take.
  • On the other hand, if a person voluntarily provided equipment which he knew or ought to have known was defective, in circumstances in which it was reasonably foreseeable that an independent contractor would use it and would be injured, then that person would be liable in negligence.
  • If such a person simply abstained from supplying any equipment at all, being under no contractual duty to do so, then he would not have been guilty of a failure to take reasonable care to avoid an act or omission which is likely to injure the contractor.

Lee Ting Sang v Ching Ch-Keung and another (1990) 2 WLR 1173, Privy Council

L was a mason who worked for a subcontractor at a construction site, chiselling concrete as instructed by the subcontractor. He used tools supplied by the subcontractor. His work was not supervised but was inspected periodically by the main contractor’s foreman. L was paid either a piece-work rate or a daily rate. If he finished work early he helped the subcontractor to sharpen tools. He sometimes worked for other contractors but he gave priority to urgent work of the subcontractor. He was injured during the course of his work.

At first instance the court ruled that L was not an employee and was not entitled to compensation from either the subcontractor or the main contractor. This decision was upheld by the Hong Kong Court of Appeal. L appealed to the Judicial Committee of the Privy Council. The appeal succeeded. The Privy Council stated that the decisions of the courts below had been contrary to the facts and had been so unreasonable as to amount to an error of law. The fundamental test in deciding whether a person was an employee or an independent contractor was whether or not he performed services as a person in business on his own account.

Bottomley v Todmorden Cricket Club [2004] PIQR P18, Court of Appeal

Chaos Encounter (CE) was a two-man stunt team carrying out a pyrotechnic display at T’s annual fundraising event. B was an unpaid volunteer engaged to help CE. He suffered serious injuries and claimed compensation from T and from CE. At first instance, the judge made the following findings of fact:

  • B had no training or experience in the use of pyrotechnics.
  • The pyrotechnic display was potentially very dangerous.
  • T was aware before the event that CE intended to perform a dramatic night-time stunt involving pyrotechnics.
  • CE had no public liability insurance cover.
  • No-one from T’s committee had asked about insurance.
  • The safety equipment provided to B was inadequate.
  • There was no formal contract between T and CE, and T had no clear idea of the stunt which CE was to perform.
  • T had failed to take reasonable care to select a reasonably competent stunt operator and had failed to take adequate steps to find out whether CE was insured.
  • T was vicariously liable for the negligence of CE because, although they were independent contractors, it had engaged them to carry out an extra-hazardous activity on its premises.

The judge stated the following principles of law.

  • A person who engages an independent contractor to carry out works is not liable for the negligence of the contractor, provided that person exercised reasonable care to engage a reasonably competent contractor.
  • An occupier of land does not owe a duty, either under common law or the Occupiers Liability Act 1957, to an employee or agent of an independent contractor who is carrying out an activity on the occupier’s land where the employee or agent is injured because of the way in which the activity is carried out.
  • Some activities are particularly hazardous. Where this is so, the law imposes a duty on the employer to see that care is taken, and the employer is vicariously liable for negligence on the part of the independent contractor.

At first instance it was found that T was vicariously liable for the negligence of CE. It had been in breach of its duty to take reasonable care to select a reasonably competent independent contractor. Checks would have revealed that CE had no public liability insurance. T appealed to the Court of Appeal. That Court dismissed the appeal and made the following points:

  • There was ample evidence that T had failed to exercise care when selecting CE.
  • The occupier who wishes something dangerous to be done on his land, for his benefit, by an independent contractor, may be liable.
  • The injuries suffered by B were foreseeable if there was no proper safety plan.
  • It was fair, just and reasonable to impose liability on T.

Makepeace v Evans Brothers (Reading) and another (2000) The Times, 13 June, Court of Appeal

M, a painter and decorator, was working from a tower scaffold when it toppled over. He suffered head injuries which left him permanently disabled. The tower had fallen either because it had been erected without stabilisers or because M had upset its balance. M was employed by E, who had been engaged by the main contractors. The main contractors had supplied the scaffold. They had told M that he could borrow the scaffold. No-one asked him if he knew how to erect and use the tower.

M’s claim for compensation against E succeeded. His claim against the main contractors was dismissed. There was doubt as to E’s ability to meet the judgment and M appealed against the dismissal of his claim against the main contractors.

The appeal was dismissed. The general principle was that main contractors owed no duty of care to a subcontractor’s employee to ensure the safe use of a tower scaffold which they provided for use on a building site.

It would extend the nursemaid school of negligence too far to require the main contractors to ask whether he knew how to use the equipment safely and the inherent dangers in its incorrect use. A tower scaffold was an ordinary piece of equipment of a kind frequently used on building sites by painters.


Asbestos and health and safety

ASBESTOS AND HEALTH AND SAFETY AT WORK

Leading cases on this issue include the following:

Fairchild and Others v Glenhaven Funeral Services and Others (200) The Times, 21 June, House of Lords

The claimants sought compensation in common law negligence from a number of their previous employers for mesothelioma contracted as a result of their exposure to asbestos at work. The Court of Appeal made the following points:

  • Mesothelioma arises when a single cell in the lung lining is damaged and undergoes malignant transformation.
  • Ninety per cent of mesothelioma cases in the UK are known to follow asbestos exposure.
  • The risk of mesothelioma increases with increased exposure to asbestos. The degree of severity of the condition does not.
  • If there has been more than one employment involving exposure to asbestos, there is no means of determining from which employment was derived the fibre or fibres which caused the malignant transformation.
  • The disease is almost always fatal within two years of its appearance.
  • The claimants could not prove, on the balance of probabilities, which period of exposure caused or materially contributed to the cause of the mesothelioma.
  • There was not a basis for claiming that since each exposure increased the risk of mesothelioma, the claimants could be compensated for the increased risk of contracting the disease.
  • Until the disease had developed, the employee did not know that he had an injury giving rise to a cause of action. Once it had developed, he had to establish on the balance of probabilities that a particular employer caused the disease.

On appeal to the House of Lords, the decision of the Court of Appeal was reversed. The Lords made the following points:

  • The injustice of denying an industrially injured employee a remedy outweighed any unfairness to successive employers who failed to protect the employee from such injury but who could not be proved to have caused the damage complained of.
  • In such a case, proof on a balance of probabilities that each employer’s wrongdoing had materially increased the risk of the employee contracting the disease, was to be treated as proof that each employer had materially contributed to it.
  • The mechanism which initiated the genetic changes culminating in mesothelioma was unknown. The trigger might have been a single asbestos fibre or a few or many fibres. Once caused, the condition was not aggravated by further exposure but the greater the quantity of fibres inhaled, the greater the risk of developing the condition.
  • If C was employed at different times and for different periods by both A and B, and both A and B were under a duty to take reasonable care to prevent C inhaling asbestos dust because of the known risk that such inhalation might cause mesothelioma, and both A and B were in breach of that duty, and C was found to be suffering from mesothelioma; and any cause for the mesothelioma other than the inhalation of asbestos dust could be discounted; but C could not prove which employment had resulted in mesothelioma because of the current limits of human science, then C could recover compensation from either A or B or both.
  • The case raised an obvious and inescapable clash of policy considerations. There might be unfairness to an employer where he might be found liable for damage which he had not caused. On the other hand, there was a strong policy argument in favour of compensating those who had suffered grave harm at the expense of their employers who had failed to protect them against that harm.

Barker v Saint Gobain Pipelines plc [2004] EWCA Civ 543, Court of Appeal

B died of mesothelioma in 1996, aged 57. He had been employed by Summers Ltd at its Shotton steelworks from 1960 until 1968. He was exposed to asbestos during this period. During one six-month period his work involved the regular stripping out of asbestos blankets, boards and wool which had ben used for insulation. B and his workmates were required to sweep up asbestos which had settled on the floor. Expert evidence confirmed that exposure to asbestos was heavy, frequent, regular and of long duration. In 1958 B worked for Graessers Ltd, mixing asbestos for pipe laggers. His exposure to asbestos during this period was described as heavy, regular, frequent and of medium duration. Between 1968 and 1969 B was a self-employed plasterer. He had contact with asbestos dust on three occasions. This involved heavy exposure for a short period.

B’s widow claimed compensation from Saint Gobain, the successor company of Summers Ltd. Saint Gobain was responsible for discharging the liabilities of Summers Ltd.

The High Court found in favour of B’s widow and made the following points:

  • It was impossible to attribute precise responsibility for B’s mesothelioma.
  • The law imposed liability on those who were responsible for materially increasing a risk which later materialised, even though others were also responsible for increasing the risk.
  • In relation to apportionment of liability, mesothelioma must be considered to be n indivisible injury. The general principle was that, where it is impossible to prove which of a number of tortfeasors singly or together caused an indivisible injury, then each tortfeasor is jointly and severally liable to pay full damages for the injury. This applied in the present case.

Saint Gobain appealed to the Court of Appeal which dismissed the appeal. It stated the following:

  • It would be unjust to impose liability on a party who had not been shown to have caused the damage complained of. On the other hand, there was a strong policy argument in favour of compensating, at the expense of their employers, those who had suffered grave harm. Their employers owed them a duty to protect them against that very harm and failed to do so, when the harm could only have been caused by that breach of duty.
  • Science did not allow accurate attribution, as between several employers, of precise responsibility for the harm suffered.
  • The injustice which might be involved in imposing liability on an employer in breach of duty in such circumstances was heavily outweighed by the injustice of denying redress to the victim.

Durie v Wyvern Structures Ltd 2000 Rep.L.R., Scottish Outer House

D, employed as a plumber’s mate, had been employed by W from 1942 until 1946, and by Y at various dates between 1946 and 1965. He died in 1975 and his daughter claimed compensation from W and Y, alleging that her father had died from asbestosis. The main issue in the case was the cause of death. The Scottish court dismissed the case and made the following points:

  • D had suffered significant exposure to asbestos during his employment with W and with Y.
  • His daughter had failed to prove that D had suffered from asbestosis. All experts accepted that in order to support a diagnosis of asbestosis they would have to find features consistent with the condition which might remain constant or would deteriorate. There was no evidence to satisfy this requirement. There was nothing in the radiographs or hospital records which could not be explained by other factors, given D’s smoking and history of bronchitis, obstructive airways disease and emphysema.
  • D had died before his disease could be fully investigated. In the absence of a postmortem, no firm diagnosis of bronchial carcinoma had been made.
  • There was no evidence to prove that this was the cause of death, given that the preponderance of medical opinion was that D had died from pneumonia, which was more likely to have been caused by smoking than by exposure to asbestos.

Gunn v Wallsend Slipway and Engineering Co Ltd (1989) The Times, January 23, High Court

Between 1948 and 1965 G’s working clothes were frequently impregnated with asbestos dust. G’s wife washed his clothes. Before washing the clothes she shook them and them washed them in a tub. This practice continued until 1960 when G bought a washing machine. In 1986 G’s wife died of mesothelioma. It was common ground between the parties that the link between asbestos and mesothelioma was securely established. The court accepted medical evidence that increase asbestos fibres found in the deceased’ lungs indicated that the mesothelioma was asbestos-related and it was reasonable to assume that the washing of the contaminated clothes was the source of the fibres. The period between the first exposure to asbestos fibre and the development of mesothelioma was on average between 25 and 30 years. This fitted in with the facts of the case.

It was accepted by G that a precondition of the existence of a duty of care by the employer to the deceased would be acceptable evidence that a prudent employer ought reasonably to have foreseen that there was a risk of some physical injury to the deceased as a result of the exposure.

The High Court dismissed G’s claim for compensation and made the following points:

  • The employer owed no duty of care to the deceased.
  • Before 1965, no employer bore in mind the risk of physical injury from domestic exposure to asbestos.
  • There was no medical literature on the subject, no warnings or guidance in industrial or official publications even hinting at the problem and no approved practice in relation to the storage and washing of working clothes.
  • Even if the employer had employed appropriate medical and safety personnel, it was most unlikely that it would have become aware of the risk from domestic exposure until about the end of 1965.       

Alcohol and drugs: health and safety issues

HEALTH AND SAFETY AND ALCOHOL AND DRUG ABUSE

Significant cases on alcohol and drug abuse and health and safety at work include the following:

Armed forces: drunkenness: employer’s duty of care

Jobson v Ministry of Defence (2000) The Times, June 28, Court of Appeal

J was a soldier who travelled with a group of comrades for a night out during arduous training. They travelled in an army lorry. Most of the group were intoxicated during the return journey. J tried to climb onto the canvas roof of the lorry. He fell and was injured. He claimed compensation in negligence from his employer, the Ministry of Defence. At first instance his claim was dismissed. The judge stated the following:

  • It was reasonably foreseeable that some of the soldiers might be drunk.
  • The employer had been in breach of its duty to supervise the behaviour of the group.
  • The employer was not liable because J’s actions in trying to climb onto the roof of the lorry had not been foreseeable.

J’s appeal to the Court of Appeal succeeded. The Court of Appeal ruled that although an adult could not generally rely on his own drunkenness as giving rise to a duty on others to exercise special care, there was no such invariable rule.

Where an obligation of care existed in respect of a person who was likely to be drunk, that liability could not be avoided because the person was drunk. J was largely the author of his own misfortune. His contributory negligence amounted to 75 per cent.

Armed forces: duty of care: responsibility

Barrett v Ministry of Defence (1995) Court of Appeal

B was a naval airman stationed in Norway. One day in 1988 he consumed a large amount of duty-free alcohol and became unconscious. His widow claimed compensation in negligence from the Ministry of Defence on the basis that B’s death had been caused by its negligence. In the High Court she was awarded £200,000 compensation. The reasons for this award were that boredom at the base had been foreseeable and it was also foreseeable that B would drink heavily. After he had become unconscious the MOD had assumed responsibility for him.

On appeal by the MOD to the Court of Appeal, the appeal was allowed in part. The Court made the following points:

  • The law allowed responsible adults to assume responsibility for their own actions in relation to the consumption of alcohol.
  •  After B became unconscious, the employer was responsible for him.
  •  The MOD admitted that it had not properly carried out its responsibilities and was liable to the extent of one-third. Compensation was reduced to £71,400.

Employees drunk at training seminar

Whitbread Beer Company v Williams (1995) Employment Appeal Tribunal

Three employees of Whitbread attended a training seminar organised by the company with the aim of improving the workforce’s behavioural skills. During the course of the seminar, the three became drunk, abusive and violent. They were dismissed and complained of unfair dismissal. The industrial tribunal (as it then was) found in their favour on the basis that the employer’s action in dismissing them had been over the top. Whitbread appealed to the Employment Appeal Tribunal (EAT).

The appeal succeeded. The EAT ruled that the tribunal’s decision had been perverse. The conduct of the three workers had been a fundamental breach of their contract of employment. The company had acted fairly and reasonably.

Drug test: dismissal for misconduct

Sutherland v Sonat Offshore (UK) Inc (1993) Employment Appeal Tribunal

S, a control-room operator on an offshore oil-drilling rig, had agreed to be subjected to drug tests. His contract of employment stated that the possession or use of drugs at work would result in dismissal. He took a drugs test which indicated the presence of cannabis in his urine. He was dismissed and complained of unfair dismissal. The industrial tribunal found that the employer had acted entirely reasonably in dismissing him. This decision was upheld by the Employment Appeal Tribunal.

Drug test: safety issues: dismissal

O’Flynn v Airlinks The Airport Coach Co Ltd (2002) Employment Appeal Tribunal

A Ltd operated a random workforce drugs and alcohol screening programme. It told employees that a positive result of drugs testing would be regarded as an a act of gross misconduct resulting in dismissal. O, an employee of A Ltd, was about to undergo a urine test when she admitted drug taking. She was dismissed. Her complaint of unfair dismissal was rejected by the employment tribunal. Her appeal to the Employment Appeal Tribunal was dismissed. The EAT made the following points:

  • O had been aware of her employer’s policy and its consequences. She had not protested against its introduction or implementation.
  • Her duties included driving vehicles and serving hot meals. There were safety issues to consider and it could not be said that the employment tribunal had been wrong to find that her dismissal was fair.

A Ltd’s policy did not impinge upon an employee’s personal life except to the extent that the employee was required to give a urine sample as part of the random screening process.   


Appeals from employment tribunals

APPEALS

Appeals from the Employment Tribunal to the Employment Appeal Tribunal (EAT) can only be brought on a point of law. Appeals to the EAT are not for the fainthearted and involve lengthy and complex procedural and administrative steps and a trip to London if the matter comes to a hearing. Notice of an appeal must be received by the EAT within 42 days from the date when written reasons for the ET decision were set to the parties.

What is a “point of law”? This issue has given rise to a mass of decided cases.

The general principles would seem to be as follows:

  • That the ET misdirected itself in law, misunderstood or misapplied the law; or
  • The ET misunderstood or misapplied the facts; or
  • The ET decision was “perverse”, that is, plainly wrong; or
  • The ET did not follow correct procedure; or
  • The ET hearing was improperly conducted.

It is fair to say that it is extremely difficult for an unrepresented person to carry out a successful appeal to the EAT.

Time limits for appeal


Haydar v Pennine Acute NHS Trust (2018). H brought proceedings against P. The ET upheld his claim for unfair dismissal, with a 50% deduction for contributory conduct, and dismissed his claims of discrimination. H wished to appeal the judgment.

He had until 27 May 2014 to appeal. He lodged a valid notice of appeal on 12 May 2014 but there was no record of the appeal being received by the EAT, and H received no acknowledgment. Five weeks later H realised he had heard nothing. He telephoned the EAT, and was told they had not received the appeal paperwork.  H resent the appeal paperwork, and it arrived on 7 July 2014. This was out of time and H applied for an extension.

This was refused and H appealed to the EAT. The appeal was dismissed and H was referred to a booklet called ‘The Judgment’ available online. This explains the appeal process, and the strict time limits. The booklet states as follows:

If you have not received an acknowledgment from the EAT within seven days of posting the notice of appeal, you should contact the EAT to confirm they have received your appeal.’

H appealed to the Court of Appeal. The appeal was dismissed.

H had not sought to obtain a copy of the booklet. He had made several appeals previously to the EAT, and was conversant with the process. The loss of the paperwork was a good reason for an initial delay, but there came a point where the onus was on the litigant to take the initiative and check that the package had been received.


Employment tribunals: ET1

ET1

Completion of the ET1 form is not particularly difficult, but care must be taken. Details of the claim can be set out in a separate document.

It is very important to note that once ET proceedings have been issued by lodging an ET1 form, you will effectively lose control of the case. As soon as the claim is issued, the ET judge’s powers, which are extensive, come into play.

Communication

Don’t expect communication with the tribunal to run smoothly. It is crucially important not to run deadlines to the wire. There may be problems with IT hardware or software.

Because of restrictions on the size of ET electronic mailboxes, large document files may fail to be properly delivered. This can lead to a claim being struck out by the tribunal because of documents not being delivered on time.

Documents can be sent to the ET electronically. You will normally receive a standard acknowledgment response. This does not always happen. You may then need to deliver hard copy of the documents by hand to ensure that they have been received. Be prepared to wait in line at the enquiry desk. Courts and tribunals are short-staffed. This is not taken into account by ET judges when deadlines have been missed.

Claim not able to be sensibly responded to

Trustees of the William Jones’s Schools Foundation v Parry (2018). P lodged a claim of unfair dismissal and arrears of wages against T. The claim form stated ‘Please see attached’ in relation to the details of the claim. P’s solicitors attached details of a different case. The ET accepted the claim. T asked the ET to reject the claim as being in a form which could not sensibly be responded to. The ET ruled that an application for reconsideration was only available to a claimant. T appealed to the EAT.The EAT dismissed the appeal. It stated that although the ET had been wrong to conclude that the claim could sensibly be responded to, the claims were indisputably claims which the ET had jurisdiction to consider. The ET’s error was immaterial and the reconsideration appeal was rendered academic.

Email attachments

J v K and another (2019). Five minutes before the deadline for appealing against a decision of an employment tribunal, J sent an email to the EAT with an attachment containing the relevant documents. The communication failed because the attachment was beyond the capacity of the server. J re-sent the documents in a number of smaller files which were received after the deadline. He was refused an extension of time and appealed, stating that he suffered from serious mental ill-health which affected his ability to communicate. He appealed to the EAT.         

The appeal was allowed.

A guide on the government website stated that the size of attachments should not exceed 10 MB. Apart from that guide, an ordinary layman would reasonably expect that the EAT’s server would be able to accept all the necessary documents as an attachment. The guide was only available if the appellant knew of its existence.

Unless and until the sever capacity was increased, consideration should be given to drawing attention to the problems rather more emphatically than was done at present.

Where mental ill-health had contributed to a would-be applicant failing to lodge an appeal in time, that would always be an important consideration in deciding whether an extension should be granted.