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Cite as: [1991] UKEAT 100_91_1510

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BAILII case number: [1991] UKEAT 100_91_1510

Appeal No. EAT/100/91

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 15th October 1991

Before

SIR DAVID CROOM-JOHNSON DSC VRD PC

MR J P M BELL CBE

MRS M L BOYLE

(1) W BIGHAM

(2) L KEOGH APPELLANTS

GKN KWIKFORM LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR JEREMY McMULLEN

(Of Counsel)

Messrs Pattinson & Brewer

30 Gt James Street

LONDON WC1N 3HA

For the Respondents MR S MOON

(Representative)

Building Employers' Confederation

82 New Cavendish Street

LONDON W1M 8AD

SIR DAVID CROOM-JOHNSON: This was, in the first instance, an Appeal by Mr Bigham and Mr Keogh from the Decision of the Industrial Tribunal sitting at London (South) on the 28th November 1990.

They had instituted proceedings against the Respondents GKN Kwikform Ltd, henceforth referred to as "GKN", on the basis of unfair dismissal.

We were told at the outset of this Appeal that the Appeal of Mr Bigham was no longer before us because he had withdrawn it, and the case has therefore gone solely on that of Mr Keogh.

The facts out of which the case arose were that the two Applicants, whom the principle one before the Tribunal seems to have been treated as being Mr Bigham, were scaffolders on a site under the Respondents' control at Greenford in Middlesex.

They had been working on that site for about a year and Mr Bigham was the foreman.

There was some dissatisfaction with his capabilities as foreman, and GKN wished to transfer him when possible to an alternative site. The office from which the Greenford site was being operated, the GKN office, was their Hammersmith depot.

The other scaffolders did not want Mr Bigham to be transferred and accordingly, to cut a long story short they decided not to work, they went on strike in order to have him reinstated; that was the finding eventually of the Industrial Tribunal.

In the course of what happened there were a number of communications between the scaffolders at the Greenford site and the Hammersmith office. Various representatives of the Company came down and negotiated with the scaffolders and eventually all but four of the scaffolders decided that they did not want to take strike or industrial action and were sent elsewhere. That left the "hard core" of four.

They were twice given formal warnings by the employers but they all four concluded that they did not want to work until Mr Bigham was reinstated. The effect of that was by withholding their labour in an effort to force the reinstatement of Mr Bigham all four of them were dismissed.

As a result of that dismissal the proceedings of Mr Bigham and Mr Keogh arose.

The findings of fact, which could not possibly be challenged, of the Tribunal concluded with this paragraph which really has amounted to the real argument of the Appeal for this Tribunal after cutting away a certain amount of "dead wood" which was in the Notice of Appeal.

In the findings of the Decision of the Tribunal in paragraph 2(g) the Tribunal said this:

"As a result of the dismissal the men concerned left the site. There was then a strange development. Mr Bigham submitted an application to the respondent company for employment at its Luton office. That application was made in July 1990. The applicant did not reveal his earlier dismissal from the Greenford site although it is right to say that he disclosed previous employment for the respondent company although failed to complete the question on the application form to indicate when that employment had taken place. He was taken on by the respondent in Luton but dismissed 4 weeks later when the wages clerk, who had fortuitously been absent on holiday at the time when Mr Bigham had been taken on in employment, returned, noticed Mr Bigham's name and linked it with his previous dismissal. He was then immediately dismissed."

We have been shown the form, and told of the circumstances in which the employment at Luton took place. The likelihood is, and I do not believe anybody can be more precise than that, that probably on a Friday at the end of July Mr Bigham, hearing that there were scaffolders needed at Luton, telephoned the office, said he was an experienced scaffolder and was told to report on the following Monday in order to be engaged.

On the Monday when he came, he filled in a form which was before the Tribunal and which we have seen copies, it begins:

"Position for which application is made: Chargehand Scaffolder

Name in Full: William Bigham

Home Address: 6 Chaucer Walk

Hemel Hempstead

National Insurance No. ZW770911C

Date of Birth: 24.4.1942

Details of Previous Employment (last three employers)"

and he put down the name of three companies for whom he had unquestionably worked in between the dismissal at Greenford and his filling in this form.

He did not give the dates of his work for those three different employers.

There was then these questions:

"Have you worked for this Company before? Yes

If so, where? Hammersmith Luton"

When? ......

If so, where? Hammersmith Luton

When? ......

He did not fill in the dates. If he had filled them in of course it would have been revealed that he had been discharged less than three months previously by GKN at the Greenford site Hammersmith. He was asked further questions, whether he had disability and so on, questions which he answered.

On that recital of the facts which we read just now about the strange development of Mr Bigham applying for employment at Luton the Tribunal made findings. We may say, of course, there were a number of other issues which were before the Industrial Tribunal all arising out of Section 62 of the Employment Protection (Consolidation) Act 1978 but which are no longer live matters.

In paragraph 6 of the Tribunal's Decision we come to this:

"If employees were engaged in a strike or other industrial action as we have found, then under the provisions of the Act which we have quoted these Tribunals have no jurisdiction to hear these applicants' complaints of unfair dismissal, if all relevant employees were dismissed and if none have been offered re-engagement after dismissal within the time quoted. It is clear to us that the relevant employees at the time when these applicants were dismissed, were themselves and their two colleagues, the two apprentices. The five other employees had by then, in our finding, clearly indicated a wish to dissociate themselves from the action then carried on by their colleagues and so the only relevant employees at the time when these applicants were dismissed were themselves and two others."

It is right at this point to refer to the Section under which this matter was considered which was Section 62 of the 1978 Act.

"62. DISMISSAL IN CONNECTION WITH A LOCK-OUT, STRIKE OR OTHER INDUSTRIAL ACTION

(1) The provisions of this section shall have effect in relation to an employee (the [(`the complainant')] who claims that he has been unfairly dismissed by his employer where at the date of dismissal -

(a).....

(b)the [complainant] was taking part in a strike or other industrial action."

pausing there, there was no question that at that time Bigham and Keogh were taking part in either a strike or industrial action.

Section 62(2) then reads as follows:

"In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -

(a)that one or more relevant employees of the same employer have not been dismissed, or

(b)that any such employee has, before the expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement]."

The Tribunal found that all the relevant employees had been dismissed so that 62(2)(a) had been satisfied but Section 62(2)(b) had to be considered because the engagement at Luton of Mr Bigham was by only a few days short of the three month period since his dismissal at Greenford.

Returning to the Tribunal's Decision and resuming reading paragraph 6 of that Decision the Tribunal came to this part:

"We have then to deal with the strange occurrence of the applicant, Mr Bigham's, re-engagement in Luton. The dismissal occurred on 27 April 1990 and it is indicated at the head of Mr Bigham's application form to the Luton office that he started employment there on 23 July 1990, and so his re-engagement is within the period of three months mentioned in section 62(2) of the Act. However, in our view, that re-engagement should not be permitted to be prayed in aid by these applicants or persuade us to accept jurisdiction. It is clear to us that the re-engagement was effected by a mistake and that it would never have been done had the wages clerk been present and not on holiday. It was not therefore an effective re-engagement for the purposes of permitting these Tribunals to assume jurisdiction; if we were to find otherwise it would permit the unscrupulous employee (among which we do not number this applicant) dismissed by a large national organisation simply by some means or other to obtain employment at a distant branch of his company and thereby prevent the operation of the otherwise clear provisions of section 62 of the Act."

The ground of appeal put forward on behalf of Mr Keogh was this. Here was a finding that Mr Bigham, on whose back Mr Keogh's claim has to travel, had been re-engaged by GKN at Luton within the three month period and unless it could be shown that that re-engagement was a mistake, and I will come to the meaning of that word in a moment, in the sense that there was not an effective re-engagement at all, then Mr Bigham was re-engaged within the meaning of Section 62(2)(b) and that means that one of those striking workmen had been re-engaged within the forbidden period with the consequence that the other employee Mr Keogh, could bring his claim for unfair dismissal and that the Industrial Tribunal had jurisdiction to consider it.

It was submitted by Mr McMullen that only if it could be shown that Mr Bigham's contract at Luton was a void one, a nothing, that it could be disregarded in the way in which the Industrial Tribunal did.

It is important to see exactly how the Tribunal put the matter. It was suggested that they were trying to write into the Section words which were not in it and that accordingly they were wrong in law. What they had said was and I quote:

"It is clear to us that the re-engagement was effected by a mistake and that it would never have been done had the wages clerk been present and not on holiday. It was not therefore an effective re-engagement for the purposes of permitting these Tribunals to assume jurisdiction"

Mr McMullen submitted to us a skeleton argument eloquently setting out why it could not be said that there was any "mistake" in the sense of rendering Mr Bigham's re-engagement void which meant that his contract was a void one.

One should at this point say that the Industrial Tribunal in dealing with Mr Bigham's application at Luton made what really amounts to an express finding that in going to Luton and filling in that form and obtaining the job which he did without having indicating that he had been discharged within the previous three months by Hammersmith at Greenford was not being unscrupulous and not being fraudulent. If there had been a fraudulent application on Mr Bigham's part then that would have voided his contract. GKN would have been entitled to take the course that they did and Mr Keogh would be not entitled to ask the Industrial Tribunal to assume jurisdiction.

Mr Moon who has appeared before us on behalf of GKN has at the outset, and told Mr McMullen beforehand that he was going to do so, indicated that he was not going to say that there was a mistake by GKN at the time of the engagement of Bigham which invalidated that contract of employment, but he takes a different point, and a point of considerable interest in the construction of Section 62 of the Act. What he has said was, that the Tribunal would only have jurisdiction if the re-engagement of Mr Bigham at Luton was such that it was a re-engagement within the meaning of those words as they are found in Section 62.

We have already referred to Section 62(2). In Section 62(4)(c) there is a definition of re-engagement. It reads as follows:

"any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case."

Mr Moon has submitted that that requires that in offering to re-engage one of the relevant workmen within 62(2)(b) the employer must have had actual knowledge, or constructive knowledge, of the first job from which the employee had been dismissed. He said there was nothing on the form, which was filled in by Mr Bigham, which alerted GKN to his previous history with the Respondents GKN and that they did not have knowledge therefore of the Greenford job which he had had; they did not have knowledge when he applied at Luton, of the dismissal which had taken place at Greenford, and they did not have knowledge of the reason for dismissal, which was the unofficial strike.

We have been referred by him to the case of Arnold & Another v. Stratton [1898] Times Law Reports p.537 which in effect held in a totally different context, that is to say the re-engagement of a music-hall artiste, that re-engagement was a matter of fact and not of law, and that there was no proper legal definition of what those words meant.

With respect to Mr Moon, we do not find that authority of any help because in section 62 of the Employment Protection (Consolidation) Act 1978 there is a definition and the words "an offer of re-engagement" must be read in the context of that section and what that section is all about.

It is the offer of re-engagement which is relevant for the purposes of Section 62(2)(b). The subsequent employment does not apparently amount to the test. So one simply has to see what happened when he was offered re-engagement.

The offer of re-engagement clearly took place at Luton on the Monday morning, if that was the day, after he had filled in the form and handed it over to the wages clerk. Possibly there is no doubt that they were short of staff and anxious for scaffolders to begin straight away and no inquiries were therefore made by that wages clerk who was quite ignorant of the past history of Mr William Bigham.

Looking at the whole context of Section 62 one has to realise that the section is in the Act in order to be a safeguard against the victimisation of employees who have either taken part in the strike or other industrial action, or where an employer has been conducting or instituting a lock-out. The requirement is that if there is an unofficial strike the employer cannot be taken before the industrial tribunal on the grounds of unfair dismissal of the strikers if he has dismissed all of them, and it was in order to make sure that there was no victimisation that that provision was in the section.

Similarly, in order to prevent that being evaded by unscrupulous employers who dismiss all of them and then take back those that they wanted to keep rather than the ones they wanted to get rid of, that the further provision was put in that there should be no offers of re-engagement within three months of any one of those strikers who had been dismissed.

It is of interest, and we think relevant that when the word "re-engagement" is used in the Section 62 it is contemplating the striker, in this instance Mr Bigham or Mr Keogh, going back and being taken back again by the original employer. It is after all "re-engagement" which is referred to and it is "re-engagement" which is defined in Section 62(4)(c).

Mr Moon has submitted that the word "re-engagement" is not relevant unless the employer has got knowledge that first of all he has employed that particular man before and secondly, unless he has got knowledge of the fact that that man was dismissed and the reason why he was dismissed within three months of the dismissal. He submits that for the contract made when Mr Bigham went to Luton to be affected by section 62 a simple new contract of employment is not enough. It had to be a "re-engagement" by the employer who knew of the first job at Greenford and the dismissal and why.

The fact that in between the dismissal and the application for re-employment resulting in the offer of re-engagement at Luton, he had worked for very short periods, we are told, for three other scaffolding companies, appears to us to be irrelevant. The whole question is, was what happened on the 23rd July, a re-engagement of Mr Bigham by GKN within the meaning of the section. "No" says Mr Moon, "the wages clerk was ignorant of the fact that Mr Bigham had been previously employed at Greenford; he was certainly ignorant of the fact he had been dismissed; and he was certainly ignorant of the fact that he had been dismissed for having been on unofficial strike."

Looked at in the context of section 62 as a whole, Mr Moon's submission is attractive. But in the present case it does not solve the problem. For employers in large organisations it may create difficulties. It is submitted by Mr Moon that whereas actual knowledge would be enough for it to be an offer of re-engagement on the part of the employer, but nevertheless he has to concede that the employer may have constructive knowledge of the fact that what is being offered is the re-engagement within the meaning of the section. Constructive knowledge is the means of obtaining knowledge.

Large scaffolding firms with decentralised offices and sites and with a large turnover of labour may have difficulties. Taking on Bigham in a hurry, if that is what happened, was a risk and that is a risk which employers of that kind who organise their businesses in that way have to run unless they take steps to avoid it.

We have come to the conclusion that on the submissions which have been put before us and the facts as they were established, that GKN must be said to have had constructive knowledge of what went on at Greenford with Bigham. The employer in each case was the same. It was GKN and they had more than one office but they had records relating to them. Mr Bigham, who was acquitted of any intent to defraud, had revealed on the form that he had worked previously for GKN, although he did not say when, and he told them that he had done so at Hammersmith, that is to say through the Hammersmith office including of course the site at Greenford. All that was required on the part of the wages clerk who was engaging him was to pick up the telephone and to telephone through to Hammersmith and ask what they knew about Mr Bigham. If he had done so, he would have been told straight away, "oh yes, he is somebody we had to dismiss less than three months ago because he took part in an unofficial strike" and in those circumstances one can safely assume that the offer of re-engagement which was made at Luton on that day would never have been made. Unfortunately, the enquiry was not made and nothing was done until the full-time wages clerk, who knew all about Mr Bigham's history, returned to work after his holiday.

In the circumstances therefore, on the facts of the present case, and even accepting as we do the construction of Section 62 as advanced by Mr Moon, we have come to the conclusion that the offer of re-engagement which was made was one which was within the section and accordingly, Mr Bigham having received an offer of re-engagement within the period, Mr Keogh is entitled to say that the Industrial Tribunal had jurisdiction given to it (otherwise than by section 62,) which is an excepting section, and accordingly this Appeal by Mr Keogh should be allowed.

The proper course, Mr Moon and Mr McMullen, appears to be that the case should now be remitted to the Industrial Tribunal in order for them to investigate the facts and make whatever decision they think right on whether the dismissal of Mr Keogh was unfair.

The excepting Section 62 does not apply and so they have to proceed with the Inquiry.