McCaffrey

Harvest Press Ltd v McCaffrey (1999)

Mr McCaffrey was employed as a `machine minder’ by Harvest Press Ltd. For approximately two and a half months, he had worked night shifts with another, considerably younger, colleague, X. McCaffrey had considered that ‘X’ was behaving abusively towards him and made a complaint about his behaviour to management. They asked X to attend a meeting to be held on the morning of 10th September 1998. But, during the night shift beginning on the evening of 9th September, X engaged in particularly abusive behaviour. McCaffrey felt so threatened that he decided to telephone his manager. While McCaffrey attempted to make the call, X had stood over him and shouted abuse at him. McCaffrey was so alarmed that he decided to go home and make the call to his manager from there.

McCaffrey informed his manager and also, subsequently, a Company Director, that he would not return to work unless he received assurances about his safety. In effect, McCaffrey requested that X be dismissed or removed from the night shift. The Company Director did not ask McCaffrey for his version of events, but later spoke to ‘X’ about the incident and apparently accepted X’s account entirely. Soon afterwards, the Director telephoned McCaffrey and informed him that – by walking out mid shift – the Company (Harvest Press Ltd) regarded him as having resigned and that he would receive his P45 in the post accordingly.

McCaffrey complained to an Employment Tribunal that he had been dismissed in circumstances which were covered by S.100(1)(d) Employment Rights Act and had therefore been automatically unfairly dismissed.

Harvest Press Ltd., argued at the Tribunal hearing that for the purposes of the legislation, the word `Danger’ was limited to danger arising out of the workplace itself and did not cover circumstances caused by the behaviour of other workers. However, the Tribunal held that the word `danger’ was used without limitation in S.100(1)(d) and that it covered any danger, irrespective of its origin.

The Tribunal found that McCaffrey had indeed been dismissed and then went on to consider whether a `danger’ actually existed and whether McCaffrey could reasonably have believed that the danger was `serious and imminent’. The Tribunal found that, because there was no one else in the factory and because X was half McCaffrey’s age and because McCaffrey was unable to predict the actions of his colleague, it was not unreasonable for McCaffrey to believe he was in ‘serious and imminent’ danger. The Tribunal also found that there was no other way McCaffrey could have averted the danger other than by leaving the workplace and ruled that McCaffrey had been automatically unfairly dismissed within the meaning of S.100(1)(d).

Harvest Press Ltd., then appealed against the decision arguing that, McCaffrey had resigned as he had presented the company with an ultimatum that unless X was moved he would resign and the Company had merely taken the initiative in accepting McCaffrey’s resignation and, consequently, there was no basis in the evidence for the Tribunal to decide that it was the employers who terminated the contract. Harvest Press Ltd., also submitted that the words `in circumstances of danger’ did not cover dangers caused by the individual actions of fellow employees. Rather, the words cover only dangers relating to the work premises. Harvest Press Ltd., further submitted that the Tribunal should have had regard to the employer’s obligations towards X. In effect, it was argued that the Tribunal’s decision placed the Company on the `horns of a dilemma’ in respect of whom they should dismiss.

The Employment Appeal Tribunal (EAT) rejected Harvest Press Ltd’s submissions, on the grounds that they did not raise arguable points of law and conculded that the Tribunal had been absolutely correct in finding that McCaffrey had been dismissed. As regards the submission that the words `in circumstances of danger’ covered only dangers relating to the work premises, EAT decided that it was too narrow a view of words which were quite general. EAT held that a workplace may become dangerous because of the actions or omissions of an employee. They referred to the example of an inexperienced and untrained employee working alongside others on dangerous processes. The presence of such an employee, EAT considered, could cause a danger in the workplace, in so far as a mistake by that employee might affect his colleagues as well as himself. EAT held that such circumstances would be covered by S.100(1)(d) and that if a fellow worker walked out he would be entitled to protection under the legislation. Accordingly, EAT agreed with the Tribunal that the word `danger’ is used in S.100(1)(d) without limitation and that Parliament had intended that word to cover any danger, no matter how it arose.

The EAT held that any sensible employer in the same situation would have interviewed McCaffrey to ascertain his version of events and then formed a view about whether or not McCaffrey was genuine in his concerns about safety. McCaffrey’s employers had failed to do this. EAT decided that if, Harvest Press Ltd., had made the appropriate investigations and decided that there was no real risk of McCaffrey’s colleague X behaving inappropriately in future, they would have been entitled to inform McCaffrey of this assessment and to put him on notice that a failure to turn up for work would be regarded as a serious breach of contract leading to the termination of his employment.

In the light of the above, EAT refused Harvest Press Ltd leave to appeal, as they did not consider that any points of principle requiring determination had been raised. The result was the Tribunal’s decision that McCaffrey had been automatically unfairly dismissed was upheld.

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