Appeal No.	 EAT/928/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 June 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR K M YOUNG CBE

NORRIS COMPUTING LTD	APPELLANTS

MR L CROFT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS	

	JUDGE PETER CLARK:	

1.	The applicant, Mr Croft, was employed by the respondent computing company as a trainee programmer from 18th March 1996 until his dismissal effective on 9th July 1997. It follows that he had not completed two years continuous service for the purposes of s. 108(1) of the Employment Rights Act 1996 [“the Act”].

2.	On 4th September 1997 he presented an Originating Application to the Birmingham Employment Tribunal which was subsequently amended by Order of a Chairman dated 26th January 1998. In that application he complained of a breach of s. 44(1)(d) of the Act and breach of contract. S. 44(1)(d) provides that an employee has the right not to be subjected to any detriment by any act by his employer on the ground that, in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.

3.	The claim was resisted by the respondents.

4.	The matter came on for hearing before an Employment Tribunal sitting at Birmingham, under the chairmanship of Mr P D Williams, on 2nd April 1998. By a decision with extended reasons dated 1st June 1998 the tribunal found the material facts to be as follows. It was clear to the tribunal that the applicant and Mr Norris, the managing director and effectively owner of the respondent company, did not get on. Mr Norris’ evidence was that the applicant was an unsatisfactory employee. He treated the applicant with contempt; abusing him roundly and treating him aggressively when dissatisfied with him. In particular, Mr Norris used very bad language to the applicant.

5.	On 9th July 1997 the applicant was working on a customer’s programme when at about noon Mr Norris came in and began to discuss the problem with him. Mr Norris became frustrated; he moved in front of the applicant and started using foul language. He was asked not to swear but repeated his bad language. The applicant decided to withdraw to the next room concerned about the possibility of an assault by Mr Norris on him. After about two minutes Mr Norris came into the applicant’s room, the applicant tried to walk past Mr Norris but his passage was barred. Mr Norris then followed the applicant into another demonstration area. Whilst the applicant was trying to get away, Mr Norris went across to him, grabbed him by the shirt and then whilst swearing at him kicked the applicant repeatedly in his behind and upper legs. When this had happened Mr Norris said “I think you had better go”. The applicant said he was gong to leave the premises and did leave to protect himself from the danger of further attacks which he thought might be serious. In due course, the applicant left the premises and went to hospital where he received treatment for his injuries. He reported the matter to the Police. Mr Norris was prosecuted, pleaded guilty and was fined the sum of £250 and ordered to pay £50 compensation to the applicant. There was little difference between the accounts of the incident given by the applicant and Mr Norris, save that Mr Norris claimed that he dismissed the applicant before the assault occurred. The applicant told the tribunal that it was after the assault. The tribunal accepted the applicant’s version.

6.	Before the tribunal the applicant’s case was advanced on the basis that his dismissal was automatically unfair for an inadmissible reason under s.100(1)(e) of the Act, which provides that:

“An employee who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that-
…
(e)	in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”

7.	The tribunal found that the dismissal took place because the applicant was trying to move out of the way and “out of range” as Mr Norris gave every appearance that the was likely to kick and commit further violence to the applicant. The claim of unfair dismissal had been made out.

8.	The tribunal went on to calculate compensation. It found that the applicant was contractually entitled to four weeks notice of termination. He had been paid only one week’s notice pay. Accordingly, he was awarded three further weeks pay in lieu of notice; one week’s pay by way of basic award and further ten week’s pay as compensation for unfair dismissal. He had found alternative employment which paid as well as his job with the respondent, thereby bringing his losses attributable to the dismissal to an end. The calculations were based on a figure for net pay of £192.69 per week. The total award was £2,697.66.

9.	In this appeal Mr Norris, on behalf of his company, relies on written representations. He puts the appeal in three ways: first, he contends that the tribunal ought to have worked on a net figure of £154.04 per week in calculating any loss sustained by the applicant. That would reduce the total award to £2,118.30. It seems that the tribunal resolved the conflict as to the applicant’s net earnings in favour of the applicant’s evidence. That is a question of fact for the tribunal with which we cannot properly interfere, our jurisdiction being limited to correcting errors of law.

10.	Secondly, he complains, supported by an affidavit sworn by him on 24th August 1998, that he was not given a fair hearing because the Chairman interrupted “in an extremely abrupt and aggressive fashion” when Mr Norris was giving evidence of the assault by him on the applicant. By letter dated 12th January 1999 the members of the tribunal dispute that claim. It appears that the Chairman indicated, after Mr Norris admitted kicking the applicant and when he kicked him, that no more evidence was necessary on the details of the assault. That does not appear to us to amount to unfairness in the conduct of the proceedings by the tribunal.

11.	His third submission is that the facts of the case, as found by the tribunal, do not give rise to a permissible finding of unfair dismissal under s.100(1)(e) of the Act. We have considered this submission with some care; we accept that the tribunal’s finding in this respect represents a purposive approach to the statutory provision contained in s.100. Plainly it is primarily aimed at dismissal of an employee by reason of his taking steps to protest himself from more conventional industrial hazards than being kicked by his employer. Nevertheless, we can see no grounds, on the highly unusual facts of this case, for interfering with the tribunal’s finding of unfair dismissal.

12.	In these circumstances we have concluded that this appeal discloses no arguable point or points of law to go to a full appeal hearing. Accordingly, it is dismissed.