ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MRS JUSTICE SLADE
UKEAT/O338/09/RN, BAILII:  UKEAT 0338_09_1604
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEVESON
LORD JUSTICE RIMER
| MS ELSIE GAYLE
|- and -
|SANDWELL & WEST BIRMINGHAM HOSPITALS NHS TRUST
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MR TIM SHEPPARD (instructed by Mills & Reeve LLP) for the Respondent
Hearing date: 25th May 2011
Crown Copyright ©
Lord Justice Mummery:
"(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of-
(a) [this relates to being or seeking to become a union member, or being penalised for doing so, which does not arise in this case]
(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so…"
Procedural efficiency and justice
"33.It is a matter of great regret that so much public money and time has been spent on this matter."
"95. We turn next to the claim raised by the claimant that she was subjected to a detriment on the grounds of her trade union activity contrary to Section 146 of TULR (C) A by being subjected to the disciplinary procedure and being given a final written warning, and also because she was dismissed. In the latter regard Mr Bedford on behalf of the claimant stated that the claimant was no longer relying on section 152 of TULR(C) A as a separate issue on that matter and we have referred to this above. In regard to the alleged exposure to the disciplinary procedure and the final written warning, whilst there was a large amount of evidence surrounding the ultimate decision to impose this sanction, the claimant herself in the notes recorded by her representative's nominee at the disciplinary hearing, accepts, as set out in the facts above, that Eva Parchment wanted to discuss with her "a management issue." That management issue was agreeing time out for trade union activities on a one-to-one basis and even if the panel did rely on the fact that Ms Parchment did not believe that the claimant had obtained proper permission from her to attend the meeting on the morning of 2 June 2006, this again, in our view, was in itself a management issue and was not to do with her trade union activities per se. It was merely agreeing the management issue of time out to attend those matters which was something that needed to be done because of the impact of the absence from the claimant from the clinical working environment. The claimant herself accepted this position as recorded above. Whilst, as was submitted by Mr Sheppard the evidence supports the fact that the claimant had failed to obtain appropriate consent from Eva Parchment to attend the meeting in particular on 2 June under the ad hoc arrangement and that therefore she had not attended the meeting at the "appropriate time" as defined by TULR(C) A, there was in any event sufficient evidence to support the decisions made by the respondent both to suspend and ultimately place the claimant on a final written warning in line with the disciplinary process. However unreasonable the claimant may feel it was that she was subjected to a final written warning, (one that ultimately played a significant part in the decision to dismiss her), it is well established law as demonstrated from the cases of Tower Hamlets v. Anthony (1989) IRLR 394 CA and Stein v. Associated Dairies Limited (1982) IRLR 447 EAT that unless a final written warning has been made in "bad faith" and there are no prima facie grounds for following that procedure, the tribunal has no power to interfere with the same. We do not conclude that there are any grounds to substantiate that this final warning was made in bad faith. We conclude therefore that this was a sanction that was within the power of the respondent to impose under the disciplinary process and that a failure to comply with a management instruction was a potential gross misconduct offence. The final written warning therefore was a live issue that was presented before the panel that decided to dismiss her. We do not conclude therefore that she was subjected to the disciplinary process or the final written warning because of or related to her trade union activities. The decision to impose the final written warning was because the claimant had failed to comply with a management request to discuss management issues i.e. the resolution of a process of identifying time outs for her to attend her trade union activities in order that the clinic could be managed and run properly…"
"97. The claimant, in our view, undoubtedly worked hard in her efforts to support her colleagues and fellow trade union members. Her record as a clinician is exemplary. Her error was failing to communicate fully and meet with the respondent's management in accordance with the agreed written procedures that we were taken to both in depth and in detail in the hearing and these were ultimately the reasons that led to her dismissal."
Employment Appeal Tribunal
Discussion and conclusion
Lord Justice Leveson:
Lord Justice Rimer: