The Claimant had relied on a number of causes of action in his ET claim, including an allegation of an automatically unfair health and safety dismissal contrary to s.100(1)(b) ERA 1996 for his having sought to undertake a workplace inspection in his capacity as a Safety Representative under the Safety Representatives and Safety Committees Regulations 1977 (SI 1977/500).
Although the cause of action was identified in the list of issues in the ET’s reasons for its Judgement, the ET appears not to have made findings of fact relevant to the issue, nor set out the applicable law, or addressed its mind so as to reach reliable conclusions on the point. Nor is the s.100(1)(b) claim identified in the ET’s Judgment.
The ET dismissal of the Claimant’s claim for dismissal on grounds of trade union membership/activities (s.152 TULR(C)A 1992 ) is not determinative of the s.100(1)(b) claim: it is a different cause of action and different findings of fact are required. It could not therefore be said that the ET’s oversight would have made no difference to its decision.
The case is remitted back to the original tribunal to decide the s.100(1)(b) ERA 1996 claim.
However, there was no error of law in the ET’s failure to consider an allegation of breach of Reg 5 of the 1977 Regulations , since this had not been argued, pleaded or identified as a free-standing complaint in the issues agreed between the parties. It amounted to the impermissible taking of a new point on appeal and it was too late to raise it now.
Nor was there an error in the Tribunal’s failure to consider the rights and obligations under the 1977 Regulations when considering if there had been a breach of s.146 and s.152 TULR(C)A 1992 . The rights of the appellant as a safety rep under the 1977 Regulations are independent from and separate to the right to protection from trade union victimisation. The cases will be fact sensitive and case specific – it cannot be said that any breach of Reg 5 of the 1977 Regulations will necessarily also amount to trade union membership or activity victimisation. Safety Representatives are independent – both of their employer and the union, notwithstanding that it is the union’s right to appoint safety representatives. On the facts of this case, the ET’s failure to consider Reg 5 and the s.100(1)(b) ERA 1996 claim did not undermine its findings and conclusions on the s.146 and 152 TULR(C)A 1992 claims.
Citations:
[2019] UKEAT 0287 – 18 – 1508
Links:
Jurisdiction:
England and Wales
Employment
Updated: 26 August 2022; Ref: scu.642760
