Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:   2100/12 & Others

 

 

 

CLAIMANTS:                    Horgan & Others

 

 

RESPONDENTS:              1.       British Airways PLC

                                        2.       British Midland Airway (subsidiary of Lufthansa)

 

 

NOTICE PARTY:              Unite the Union

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the Notice Party, Unite the Union, should not be joined as a party to the claimants’ substantive claims.

 

Constitution of Tribunal:

Employment Judge (sitting alone):                Employment Judge Crothers

Appearances:

The claimants by:            A number of claimants appeared in person with Catherine Horgan as their spokeswoman.

The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Addleshaw Goddard, Solicitors.

The Notice Party was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.

 

1.       Background

 

(i)       These cases had been the subject of a number of Case Management Discussions on 26 March 2013 (when the claimants raised the issue of joining Unite before the tribunal), 6 June 2013, 29 April 2014 (when, inter alia, the tribunal’s decision in the case of Marie Una Neill  v  British Airways PLC (Case Reference No:  2431/12), was referred to), and 13 June 2014 when the pre-hearing review was directed to determine whether Unite the Union should be joined as a party in the claimants’ substantive claim(s).  A copy of the Record of Proceedings is annexed to this decision.

 

          Ms Horgan’s case is in a group of cases including:-

 

                    Francesco Genovese                  Case Reference No:   2101/14

                                                                      (Date of Presentation: 16/10/12)

 

                    Paul Smyth                                 Case Reference No:   2013/12

                                                                      (Date of Presentation: 16/10/12)

 

                    Eleanor McConnell                      Case Reference No:   2106/12

                                                                      (Date of Presentation: 16/10/12)

 

                    Kerry Graham                             Case Reference No:   2107/12

                                                                      (Date of Presentation: 16/10/12)

 

                    Louise Wallace                           Case Reference No:   2108/12

                                                                      (Date of Presentation: 18/10/12)

 

                    Ciara Lowey                                Case Reference No:   2404/12

                                                                      (Date of Presentation: 29/11/12)

 

(ii)      The pre-hearing review was listed before the tribunal on 22 August 2014.  However, due to the factors outlined in the Record of Proceedings of that hearing it was postponed until 13 November 2014.  A copy of the Record of Proceedings is annexed to this decision.

 

(iii)      The hearing proceeded by way of representations.  The tribunal was assisted by an agreed bundle of documents and a separate bundle of authorities. 

 

(iv)      By virtue of Rule 10(j) of the Industrial Tribunals Rules of Procedure 2005 (as amended), an Employment Judge or a tribunal may order that any person the Employment Judge or tribunal considers may be liable for the remedy claimed should be made a respondent in the proceedings.

 

(v)      Catherine Horgan’s claim was presented to the tribunal on 16 October 2012 alleging, inter alia, in common with the other cases in the group, race discrimination, sex discrimination and age discrimination.  It was acknowledged, that in the context of the issue before the tribunal, the unlawful discrimination claims alone were relevant under the provisions relating to aiding unlawful acts (involving a person who knowingly aids another person to do so), by virtue of Article 33(1) of the Race Relations (Northern Ireland) Order 1977, Article 43 of the Sex Discrimination (Northern Ireland) Order 1976 as amended and Regulation 27 of the Employment Equality (Age) Regulations (Northern Ireland) 2006.  The tribunal is cognizant of the fact that in the case of Neill, the background to the issues involved in the claim(s) before this tribunal, are identical to those exhaustively analysed in that decision.  The claimant in the Neill case was unsuccessful and her claims of unfair dismissal, breach of contract, indirect race discrimination, and direct age discrimination were therefore dismissed.  There was no attempt made in the Neill case to join Unite.

 

(vi)      In the course of the hearing, Ms Horgan referred the tribunal to Paragraphs 12 – 15 of Lord Justice Maurice Kay’s judgment in the case of Allen  v  GMB [2008] EWCA Civ 810, together with the Employment Appeal Tribunal’s decision in Ashworth Hospital Authority  v  Liebling [EAT/1436/96] – in relation to the out of time issue.  Mr Potter referred the tribunal to Harvey on Industrial Relations and Employment Law, (‘Harvey’), and, in particular, to the section in Division P1 relating to adding or substituting respondents, together with Sir John Donaldson’s judgment in Cocking  v  Sandhurst (Stationers) Ltd [1974] ICR 650, NIRC, and Paragraph 18 ff of Mr Justice Mummery’s judgment in Selkent Bus Company Ltd  v  Moore[1966] IRLR 662.

 

2.       Ms Horgan’s representations

 

(i)       The claimant referred to various parts of minutes of a meeting dated 26 April 2012 entitled ‘BMI TUPE Consultation’ together with minutes of a meeting held on 9 May 2012 involving ‘BA/Bmi Consultation’ and minutes of a further redundancy consultation dated 18 May 2012.  She also referred the tribunal to sections of minutes of a BASSA meeting held on Sunday 27 May 2012, together with correspondence of 23 May 2012 from Matt Smyth, Regional Officer of Unite to Mr Francis, Head of In-flight Customer Experience.  Ms Horgan further referred the tribunal to correspondence from Unite of 18 May 2012, and correspondence, again to Mr Francis, from Kevin Hall, Regional Industrial Organiser, Unite, dated 17 August 2012 and correspondence from Matt Smyth to colleagues in Unite dated 5 September 2012.

 

(ii)      The claimant, in the course of her representations, referred to issues of conflict of interest regarding Unite, the exclusion of the staff in Belfast, and, in terms of the legislation referred to above regarding aiding unlawful acts, that Unite had been involved in aiding unlawful acts of discrimination against Ms Horgan and her colleagues.  She referred to Article 11 of the Human Rights Act to point out that she had joined Unite and paid money for the union to represent herself and others.  Her view was that Unite ‘did anything but’ represent herself and her colleagues.

 

(iii)      The tribunal made Ms Horgan aware that it had considered her claim form to the tribunal.  The claim form contains many of the issues she reiterated before the tribunal at the pre-hearing review.  Certain parts of the claim form are produced by Ms Horgan in bold type and are set out below for ease of reference:-

 

“One document I have access to states that BA have a ‘No Compulsory Redundancy’ regime (ie an obligation to offer all staff redeployment opportunities if a particular route or base terminates).

 

A letter from BMI’s General Manager, Amy James, who was involved in the consultations and who is now employed with BA’s since 1 August states -

 

‘Senior Cabin Crew Imbalance – BA Eurofleet has an imbalance of Senior cabin crew, which will be increased by the integration of BMI Mainline Heathrow based Cabin crew.  Over 40% of the cabin crew based at the outstations are senior grades, which would increase our cost base and in particular our surplus of senior cabin crew reducing efficiency in our current operation.  We do not therefore consider that it is reasonable to exacerbate this situation by including Bmi Mainline cabin crew based at UK outstations into this group.

 

I was acting as workplace union representative for the crew based at Belfast.  During this period, I would consider that BMI/BA did not engage with the outstation representatives.  Some meetings were arranged at very short notice and one of the meetings lasted 40 minutes.  Meetings were organised during the week of 14^th May 2012 without any invite being extended to me.  BA entered into TUPE talks with the London Heathrow reps.  This was after failure to agree was recorded on 11^th May 2012 between Unite/BA/BMI and the issue was to be raised to a higher level.  BA/BMI knowingly entered into talks with members of Unite who were not representative of the Belfast crew and reached an agreement with them on 18^th May 2012 which was over one month into a 90 day collective consultation.  I was informed of an email stating that an agreement had been reached by one of the crew from London Heathrow and not by BMI/BA/Unite.  After this date only two meetings were arranged, one on 30^th May 2012 and another on 29^th June 2012 which caused panic to the crew at Belfast.  I would consider that these meetings were not meaningful and genuine.  My first one to one meeting was held with a BMI product manager from on 20^th June 2012 which leads me to believe that British Airways were not disposed to retaining me in employment and BMI would have been well aware of this fact.”

 

3.       Mr Potter’s representations

 

(i)       Mr Potter, having referred the tribunal to the relevant tribunal Rule and the provisions in the legislation relating to aiding unlawful acts (which are referred to above), submitted that the union believed that the claimants had been treated unfairly in relation to the TUPE transfer and redundancy selection and, in particular, as to who was or was not given an opportunity to transfer to other employment.  He reiterated that this remains the position of the union and that the union sought to assist Ms Horgan and her colleagues in internal discussions held especially from April to June 2012.  He also pointed out that Unite had funded the legal claim in the Neill case against British Airways and that not only did the union believe that people were treated unfairly by the respondents but it assisted a number of claimants although in the Neill case the claims were unsuccessful.  Referring to Mr Justice Mummery’s judgment in Selkent, he submitted that the proposed claim against Unite was hopeless and that the decision to exclude outstation crew from the opportunity to transfer to Eurofleet was made by British Airways.  He further asserted that the decision taken by British Airways to include London cabin crew in the transfer was made right at the start, at least at a preliminary level, and that the union believed that the decision was made at that point as well to exclude outstations.  Mr Potter referred the tribunal to a number of items of correspondence relating mainly to TUPE issues and to the consultation process.  He also referred to an important communication entitled ‘Wolfgang Prock-Schauer Company Communication – 12^th April 2012’ which states, inter alia:-

 

“The operational integration of LHR would secure jobs for up to 1,500 bmi mainline staff.  Around 1,100 bmi cabin crew, pilots and engineers based at Heathrow would join BA and up to 400 passenger services jobs would be secured at Heathrow Terminal 1.

 

Regrettably, the integration proposals will lead to up to 1,200 redundancies.  These roles are primarily based in the Midlands, at regional airports and in support, commercial and overhead functions.  In the case of redundancies bmi’s redundancy arrangements would apply.”

 

(ii)      Counsel then submitted that the decision to include mainland crew in the TUPE transfer to Eurofleet and the decision to exclude colleagues from outstations (including the claimant and her colleagues) and to give a much lower option of transferring into a mixed fleet was made by British Airways.  He also invited the tribunal to consider relevant parts of minutes of the BMI consultation held on 4 May 2012 involving Unite together with minutes of a consultation meeting dated 11 May 2012 and other items of correspondence involving consultations, ending with correspondence from Kevin Hall, Regional Industrial Organiser of Unite to Mr Francis on 17 August 2012.  Mr Hall concludes that correspondence by stating:-

 

“We note BA’s position with regard to transfer of all staff, and whilst we differ on when TUPE has or had not taken place we note that no consultation has occurred in respect of the outstations.  This of course is of underlying importance when ... coming to ratifying the relevant industrial agreement.  I trust the outline will help ensure that you are able to respond appropriately to our concern at Mondays meeting.  If you have any queries please don’t hesitate to contact me.”

 

(iii)      Mr Potter submitted that the union was lobbying for the outstations all the way through the process and that the purported claim against Unite is nonsense.  He further pointed out that in terms of the ballot, the terms and conditions being offered to the London crews were not relevant to people BA had already excluded.  He asserted that the claimants were pursuing the same or similar case as Neill and that if successful, BA will be liable for any remedy, not the union.  He pointed out that there were no issues raised by the claimant relevant to the claim before the tribunal and that the purpose of litigation in tribunals is to expeditiously deal with relevant issues and not to conduct a public inquiry as to what the parties ought or ought not to have done. 

 

(iv)      In relation to the law pertaining to the matter, Mr Potter, in referring to Sir John Donaldson’s judgment in Cocking, referred to the procedure he set out to be adopted by tribunals in all cases where it is sought to amend the original application whether by adding or substituting respondents or by changing the basis of the claims, and, in particular, Paragraph 7, which states:-

 

“In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all of the circumstances of the case.  In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”

 

(v)      He further submitted that there was no disadvantage to the claimants in not having Unite as a party and to join Unite would be disadvantageous to everyone in the equation.  To do so would also complicate and elongate the hearing and there would be possible prejudice caused by the claimants’ inability to focus on the main points in order to win their cases.  He pointed out that the claimants had failed to put a claim against Unite in their claim forms at the relevant time even though they were on notice of the concerns before the claim forms were presented.  In this regard, Mr Potter referred the tribunal to correspondence to Len McCluskey of Unite dated 6 July 2012 which is sent, inter alia, by Catherine Horgan, Francesco Genovese, Patricia Leydon, Paul Smyth, Kerry Graham, and Louise Wallace.  He also referred the tribunal to correspondence sent to Matt Smyth of Unite by Ms Horgan on 7 July 2012 and the reply of 12 July 2012.  In addition, he referred the tribunal to documentation entitled ‘FW : BA/BMI Communications’ which includes correspondence to Len McCluskey of Unite dated 20 July 2012 which is copied to a number of individuals including Ms Horgan, and to correspondence from Matt Smyth to Ms Horgan and others dated 5 September 2012.  He submitted that it was inexplicable, in light of this correspondence, that the claim against Unite was not included in Ms Horgan’s claim to the tribunal which was presented on 16 October 2012.  He suggested that if the claimants genuinely felt that there was a claim against Unite this would have been included in the claim forms.  He reiterated that Unite were sympathetic to the claimants and had fought for them internally and in the tribunal.  He submitted that such a claim had no chance of success, was a waste of time and was prejudicial to the other sides in the case but felt that there was some merit especially in the unfair dismissal case.

 

 

 

4.       Mr Mulqueen’s representations

 

Mr Mulqueen submitted that he did not wish to add to Mr Potter’s submissions in relation to the rights and wrongs of joining Unite.  He did, however, suggest that if the claimants have redress it was accepted that it would be appropriate to proceed against the two respondents.  Counsel, however, referred to a strong caveat, in that all issues had been determined in the Neill case, one of which related to the place of work.  He referred to the fact that there was no appeal in the Neill case and that the claimant could have included Unite in that case as the facts were identical to the cases before the tribunal. 

 

5.       Ms Horgan’s further representation

 

The tribunal considered further representations made by the claimant in response to counsel’s representations and the documentation and the authorities she referred to in response to Mr Mulqueen’s reference to the Neill case and, in particular, Paragraph 2.22 thereof pertaining to the closure of outstations in the past, Ms Horgan acknowledged that outstations had been closed but pointed out that people had never been made redundant on a compulsory basis.  She suggested that Unite have been looking after the bigger membership in Great Britain and that they had aided and abetted the process of securing jobs for the London crew and getting rid of outstations.  She highlighted the fact that in correspondence of 4 January 2013 she had tried to join Unite in the proceedings.  She also referred to what was, in her terms, contradictory legal advice in relation to the matter and to correspondence dated 1 May 2012 from Kevin Hall of Unite to substantiate her representations against Unite and maintained that a deal had been done involving Unite in May 2012.  Ms Horgan also suggested that there were distinguishing features as between the claims before this tribunal and the Neill case.  She urged the tribunal to extend time based on the Ashworth Hospital Authority  v  Liebling case and contended that it was just and equitable and in the public interest to have Unite joined to the proceedings.  She relied on the Allen case to substantiate her representations against Unite. 

 

6.       The law

 

          (i)       The tribunal considered the authorities referred to by the parties.

 

(ii)      Harvey, Division P1, under the heading of ‘Adding or substituting respondents’ states (in relation to the case of Cocking  v  Sandhurst (Stationers) Ltd [1974] ICR 650, NIRC):-

 

“Sir John Donaldson, giving judgment, went on to specify the correct procedure to be adopted by tribunals in all cases where it is sought to amend the originating application whether by adding or substituting respondents or by changing the basis of the claim (at 656, 657) :

 

‘1.       They should ask themselves whether the unamended originating application complied with [Rule 8(1) of Schedule 1 to the 2013 Regulations] : see, in relation to home-made forms of complaint, Smith  v  Automobile Pty Ltd [1973] 2 All ER 1105, [1973] ICR 306.

 

 2.      If it did not, there is no power to amend and a new originating application must be presented.

 

 3.      If it did, the tribunal should ask themselves whether the unamended originating application was presented to the [tribunal] within the time limit appropriate to the type of claim being put forward in the amended application.

 

 4.      If it was not the tribunal have no power to allow the proposed amendments.

 

 5.      If it was the tribunal have a discretion whether or not to allow the amendment.

 

 6.      In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against.

 

 7.      In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case.  In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, ‘refused’.”

 

(iii)      Harvey points out that this procedure has been generally approved and followed in subsequent cases but that it should be read in conjunction with the additional guidance given by the EAT in Selkent Bus Company Ltd  v  Moore [1996] ICR 836.

 

(iv)      In Selkent, Mr Justice Mummery states at Paragraphs 18 – 24 of his judgment as follows:-

 

                    “18     Procedure and practice for amendments

 

The rival submissions of the parties state the position at opposite extremes.  Before we state our conclusions on this appeal, it may be helpful to summarise our understanding of the procedure and practice governing amendments in the industrial tribunal.

 

(1)      The discretion of a tribunal to regulate its procedure includes a discretion to grant leave for the amendment of the originating application and/or notice of appearance : reg 13.  See Cocking  v  Sandhurst Ltd [1974] ICR 650 at 656G – 657D.  That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal.

 

19(2)    There is no express obligation in the Industrial Tribunal Rules of Procedure requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend.  It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, ie in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.

 

20(3)    Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways:

 

(a)      It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representation from the other side.  For example, it may be obvious on the fact of the application and/or in the circumstances in which it is made that it is hopeless and should be refused.  If the tribunal forms that view that is the end of the matter, subject to any appeal.  On an appeal from such a refusal, the appellant would have a heavy burden to discharge.  He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment.  See Adams  v  West Sussex County Council [1990] IRLR 215.

 

(b)      If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition.  In those cases the tribunal would make a decision on the question of amendment after hearing both sides.  The party disappointed with the result might then appeal to this tribunal on one or more of the limited grounds mentioned in (a) above.

 

(c)      In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so.  If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made.  The disappointed party may then appeal to this tribunal on one or more of the limited grounds mentioned in (b) above.

 

21(4)  Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

 

22(5)  What are the relevant circumstances?  It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

 

                    (a)      The nature of the amendment

 

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the additional or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim.  The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

 

                              23(b)  The applicability of time limits

 

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s 67 of the 1978 Act.

 

                              24(c)  The timing and manner of the application

 

An application should not be refused solely because there has been a delay in making it.  There are no time limits laid down in the Rules for the making of amendments.  The amendments may be made at any time – before, at, even after the hearing of the case.  Delay in making the application is, however, a discretionary factor.  It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.  Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.  Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”

 

7.       Conclusions

 

(i)       Having carefully considered the representations made by all parties and the principles of law relevant to the issue before it, the tribunal concludes that Unite the Union should not be joined as a party in the claimants’ substantive claims.  In considering all the circumstances, the tribunal is satisfied that it should take into account the Neill case and the factual findings relating to the identical background to the cases before this tribunal including the consultation process.  It is also significant that the claimant in that case did not appeal the decision or seek to join Unite as a respondent.  Apart from the foregoing, the tribunal is not satisfied that the proposed claim is arguable or has any substance.  The tribunal was referred to particular extracts from minutes and correspondence which it has considered, insofar as relevant.  Whatever grievances the claimants may have against Unite, the tribunal is satisfied on the basis of the representations before it, that there is no merit in the argument that Unite aided, in the sense of knowingly aiding another person, to commit unlawful acts of sex discrimination, age discrimination or race discrimination.  Furthermore, the tribunal is satisfied that any remedy must lie against the respondents.  The effect of allowing the application would be that the tribunal’s overriding objective would not be discharged.  The proceedings would also become unnecessarily elongated and complicated for no good reason.  In addition, and having been referred to items of correspondence up to September 2012, the tribunal is further satisfied that if there was any substance in such a claim, Unite would have been joined in the original claims.  At any rate, the proposed joinder is well out of time in all cases and there is no good reason, even apart from the lack of substance and merit in such an application, as to why time should be extended on a just and equitable basis. 

 

(ii)      The tribunal further concludes that there is no prejudice or hardship caused to the claimants by Unite not being joined as any remedy will be against the existing respondents.  Any prejudice or hardship must be considered as

 

 

 

 

 

 

 

 

being against the existing respondents should the application be allowed, and, in particular, against the respondent proposed to be added. 

 

(iii)      The application to join Unite is therefore refused.

 

 

 

 

Employment Judge

 

 

Date and place of hearing:         13 November 2014, Belfast

 

 

Date decision recorded in register and issued to parties: