Appeal No.	 EAT/0805/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 May 2001

Before
HER HONOUR JUDGE A WAKEFIELD
MISS A MACKIE OBE
LORD GLADWIN OF CLEE CBE JP

MR MICHAEL WEBB	APPELLANT

PCL SECURITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR MICHAEL WEBB
(The Appellant in Person)	

HER HONOUR JUDGE WAKEFIELD

1	This is an adjourned Ex Parte Preliminary Hearing of the appeal of Mr Michael Webb against a finding of an Employment Tribunal sitting at London South whereby in a decision promulgated on 25 April 2000 his complaint of constructive unfair dismissal was dismissed. 

2	In the form IT1 the Appellant, who had effectively resigned his employment on  
9 December 1999 when he ceased to attend at work, gave as the details of his complaint, “Health and Safety Discrimination”.  He had been employed by the Respondent as a security guard and asserted that he had been required to work in unsafe conditions.  He gave evidence in support of that complaint to the Employment Tribunal.  The Respondent gave evidence before the Employment Tribunal attesting to its compliance with safety standards and its belief that the Appellant had ceased to work in order to avoid the consequences of a recently served attachment of earnings order.  

3	In paragraph 5 of its decision the Employment Tribunal found as follows:

“We balanced the Applicant’s evidence against that of the Respondents.  We bore in mind that it was for the Applicant to prove that he had resigned in circumstances in which he was entitled to, namely by reason of his employer’s conduct in not providing him with a safe system of work.  His evidence was uncorroborated and on balance we decided that he had not met the standard of proving his case on the balance of probabilities that his employers had in fact by conduct forced him out and in those circumstances, we must therefore dismiss this application.”

3	By the original self prepared Notice of Appeal dated 26 May 2000 the Appellant merely asserted that the Respondents had lied on oath.  This obviously did not raise a matter of law with which this Appeal Tribunal could be concerned.  At an Ex Parte Preliminary Hearing at this Appeal Tribunal on 22 November 2000 the matter was adjourned on the basis set out in paragraphs 4-6 of the Judgment of Judge Levy QC, given on that day in which he said as follows:

“4	When the matter was called on for hearing this morning originally a Representative of the ELAAS Scheme appeared, and he made a submission to us that the Tribunal had failed to deal adequately or at all with the grounds of the health and safety complaint.  We suggested if that was the case an amended Notice of Appeal should be drawn to reflect that and we adjourn for this amendment to be proposed which we understood he was willing to do.
5	When the Appeal was recalled for hearing, Mr Webb has appeared in person.  He has told us that on the morning of the Employment Tribunal, the Respondents appeared late and they did not have the site log books which would have assisted him to prove his case.  He said he had asked for them to be produced in the course of the hearing.  He also said in the course of his address to us that his wife had sent a document to the hearing.  The Extended Reasons are a little short.  They do not state from whom the Tribunal had evidence or what documents they considered or were sought.
6	If, as we think is the case the Appellant wishes to make allegations that he has not had a fair hearing because of the fact that matters which he was entitled to raise were not before the Tribunal and if there is evidence to suggest that, what he says needs to be put on Affidavit.”

So, that is what was said on 22 November 2000.  

4	Since then the following relevant events have occurred.  A document has been produced by the Appellant, apparently intended to be an amended Notice of Appeal although not called such, and it is in these terms:

“As requested the original of the faxed affidavit sent and amended appeal now reads The Tribunal said they had no knowledge of Security aspects, if I was only on 12 to 15 sites log books would confirm this, I listed 27 sites all with my name, comments of myself in them. 
Robert Cullen knows how many men he has, how many sites and how many outside sites factories, warehouses, building site require Safety equipment, so should have receipts of purchase for hard, hats, safety boots and waterproof clothing, torches and the proof all guards do regular patrols the Clock Patrol.
The Clients can advise on what any guard is wearing and whether Clock Patrols are done at night.
Mr Light with them for 9 years as a guard has been on Norbury, Beddington, Kingston and Queen Mary’s and like myself brought attention to safety matters.”

The Appellant has also sworn an affidavit in the following terms - this is dated 4 December 2000:

“The Tribunal admitted they were ignorant of security matters.  This depends on the right attitude to the site, office, warehouse factory, building site, all night time outside patrols need safety boots, neon waterproof coat, torch, hard hat, but vital is clock patrol and check calls.  Log book must tally with registered marks on the clock.  When there was no safety equipment, no patrols by the clock, there is no security for Client.  
Robert Cullen and his Dad took me to sites, visited on site, phoned so know exactly how many sites I did 27, all written in each site Log book and what I wore.
PCL Statement agreed I’d previously raised Safety matters as a priority MP Siobham McDonagh is witness I was on her training for work scheme for 6 months and had no Poll Tax to pay.  Baker’s solicitor Mrs Skelly is witness to the clothes worn from Mitcham Industrial site, no safety boots, hard hat, coat, torch or clock patrols.  Police at Norbuy witness at Pavillion, Badge numbers in PCL log book on site.  I never signed for, received or returned any safety boots, hard hat, waterproof coat, torch or clock patrol on any outside site.
I enclose a written statement from my ex wife confirming no Safety equipment was ever worn by me, from any site, to her place.”

There is enclosed a letter from Mr Webb’s ex wife dated 2 December 2000 which therefore could not have been before the original Tribunal.

5	The Chairman has commented on this affidavit and the amended Notice of Appeal and his comments are as follows:

“1	We did not say we had no knowledge of health and safety.  A member Mr McClean has spent many years on health & safety work.
2	Mr Webb did indeed make several references to log books but at no time did he ask for an order for their production nor did he challenge the Respondents assertion that they contained no references to complaints by him.”

The Chairman correctly comments that the affidavit largely repeats Mr Webb’s original complaints.  

6	The Appellant has today addressed us in person in support of his appeal and he continues to assert that the Respondents lied on oath before the Employment Tribunal.  The matters raised by the Appellant in the Notice of Appeal and the affidavit amount to no more than a reiteration of evidence which he did or could have given to the Employment Tribunal and to assertions that the Respondents failed in their duties to him as regards health and safety and/or that that they gave untruthful evidence before the Employment Tribunal.  There is no error of law shown as regards the Employment Tribunal decision.  Nor is there any basis shown for an assertion that the Appellant was denied a fair hearing of his complaint.  Even if it were true that – and I quote him:

“The Tribunal said they had no knowledge of safety aspects.”

(and I remind myself that the Chairman has refuted this) it is, of course, for an applicant to prove his case before a Tribunal and he cannot complain if the Tribunal bring no background factual knowledge with them when they sit to hear the complaint.  Nor can the Appellant complain if he fails before the Employment Tribunal to ensure that witnesses in support of his assertions were available to be called, and that documentary evidence on which he wished to rely was brought to the Tribunal.  This appeal cannot succeed and it is dismissed at this stage.