United Kingdom Employment Appeal Tribunal

BAILII case number: [1991] UKEAT 545_89_1909

Appeal No. EAT/545/89

EMPOLYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 19th September 1991

Judgment delivered on 10th October 1991

Before

THE HONOURABLE MR JUSTICE WOOD MC

MR J C RAMSAY

MRS P TURNER OBE

---

TRANSPORT AND GENERAL WORKERS UNION          APPELLANTS

MISS G HOWARD          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants Mr N Giffin

(of Counsel)

Messrs Pattison & Brewer

Solicitors

30 Great James Street

LONDON WC1N 3HA

For the Respondent Mr A M Fisher

Solicitor

Messrs Field Fisher

Waterhouse

Solicitors

4 Vine Street

LONDON EC3N 2AA

MR JUSTICE WOOD (PRESIDENT) The Transport and General Workers Union (T & G) has a Regional Office at "Woodberry", 218 Green Lanes, Finsbury Park, London N4. The Regional Secretary is Mr Ken Reid. From 7th December 1981 the Applicant, Miss Howard, was employed by T & G at that office as a secretary (shorthand typist). She was at that time a member of the Association of Scientific and Managerial Staff (ASTMS). She was asked to become a member of the T & G and a transfer was arranged. There was no term in her contract of employment to this effect but Miss Howard became aware that all employees of T & G should be and remain members of that Trade Union. She was a member of the ACTSS, Branch 712, which was a branch for employees of the T & G in this Region.

In 1987 Miss Howard joined the Association of Professional Executive, Clerical and Computer Staff (APEX) now part of the General, Municipal and Boilermakers (GMB). By a letter of 4th January 1989 she resigned from Branch 712. She requested that her contributions should be discontinued.

On 23rd February 1989 after a disciplinary hearing, Miss Howard was dismissed with 7 weeks pay in lieu of notice. She was asked to remove her personal belongings from the site under supervision.

By an Originating Application dated 5th April 1989 she complained of unfair dismissal. She is supported by her Trade Union APEX. At a hearing on 17th August 1989 an Industrial Tribunal sitting at London (North) found, by a majority, that the principle reason for her dismissal fell within S.58(1)(c) of the Employment Protection (Consolidation) Act 1978 and alternatively were unanimous in finding the dismissal unfair within the provisions of S.57. They gave their reasons and findings thus:-

"9. We deliberated. We considered first section 58(1)(c) of the Employment Protection (Consolidation) Act 1978, as amended. The majority of us find that the applicant's dismissal was automatically unfair by virtue of that enactment because the principal reason for the dismissal was that the applicant had refused to remain a member of a particular trade union, namely the respondent union. The minority takes the view that section 58(1)(c) (as amended) only applies when there are three separate parties; an employee, an employer and a trade union.

10. In case the majority are wrong in their view of section 58(1)(c) (as amended), we went on to consider whether the dismissal was factually unfair. We decide unanimously that the dismissal was factually unfair. In our view the employer acted unreasonably. The employer has no disciplinary code. On 9 January the applicant was called in to what was clearly a disciplinary meeting without warning and in a very peremptory manner and with representation being denied. At that very short meeting the applicant was suspended. At the subsequent meeting on 23 February the applicant had no representative or friend. Mrs Falcini said that she and Miss Mehmet were observers only, not representatives of the applicant, because they were not competent as they did not understand the matter."

The T & G does not appeal on either issue.

The appeal and cross-appeal arise out of consideration of remedy. Miss Howard sought reinstatement. This was clearly impossible and was refused. Re-engagement was not pressed.

The compensation was therefore to be monetary and there has been agreement between the parties on the amounts of each of the basic, compensatory and special awards.

After finding in favour of Miss Howard on liability the Tribunal asked Counsel for the T & G whether he wanted to argue "contribution". He did so. It is common ground that the Tribunal indicated that a 20% reduction was appropriate and in the decision make the following finding -

"11. We have to consider whether the applicant caused or contributed to some extent to her dismissal. We find unanimously that the applicant did contribute to some extent to her dismissal. We derive assistance from the judgment of Brandon LJ in Nelson v. BBC (No.2) [1980] ICR 110 at page 121. We find that the applicant's conduct in resigning from the union without seeking prior discussion was confrontational and if not bloody-minded was certainly unreasonable. We find that the provisions of section 72A of the 1978 Act do not apply when the Tribunal is considering reinstatement."

This paragraph in the decision is the subject of the cross-appeal.

Paragraph 15 of the Decision is the subject of the appeal by the T & G to this Court. It reads:-

"We were asked by the parties to make a clear statement as to our views on section 72A of the 1978 Act. In our opinion, although that section does not apply when the Tribunal is considering reinstatement, it does apply when the matter being considered is the amount of a monetary award. We find that by virtue of section 72A(1), (2)(a) and (3)(a) the conduct of the applicant is to be disregarded in determining the amount of the basic, compensatory and special awards, with the consequence that those awards are not to be reduced."

Section 72A of the 1978 Act reads as follows:-

"Reduction of compensation: matters to be disregarded

(1) This section applies in any case where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) and the dismissal is to be regarded as unfair by virtue of section 58 or 59(a).

(2) In such a case the tribunal, in considering whether it would be just and equitable to reduce, or further reduce, the amount of any part of the award, shall disregard any conduct or action of the complainant in so far as it constitutes -

(a) a breach, or proposed breach, of any requirement falling within subsection (3);

(b) a refusal, or proposed refusal, to comply with a requirement of a kind mentioned in section 58(13)(a); or

(c) an objection, or proposed objection, (however expressed) to the operation of a provision of a kind mentioned in section 58(13)(b).

(3) A requirement falls within this subsection if it is imposed on the complainant in question or under any arrangement or contract of employment or other agreement and requires him -

(a) to be or become a member of any trade union or a particular trade union or of one of one of a number of particular trade unions;

(b) to cease to be, or refrain from becoming, a member of any trade union or of a particular trade union or of one of a number of particular trade unions; or

(c) not to take part in the activities of any trade union or of a particular trade union or of one of a number of particular trade unions."

The Appellant's submissions are put under two heads. We take them in inverse order.

It is argued that under subsection (3) the requirement must be imposed "by or under any arrangement or contract of employment or other agreement" and that in the present case none of these descriptions is applicable to what happened. The only word which could perhaps be relied upon is "arrangement" and this, it is contended, is a bilateral notion not a unilateral one which this arrangement was.

We are unable to accept this. As was pointed out by a lay member this would mean that a trade union employer could never come within S.72A(3). The arrangement here, as Mr Fisher submits, was that between the officers of the T & G who imposed the requirement upon Miss Howard.

Secondly, and this is the main point of the appeal, it is submitted that the Industrial Tribunal failed to appreciate that S.72A permits a distinction to be drawn between that which is done by the employee complainant and the way in which it is done. Mr Giffin points to the words in subsection (2), "...any conduct or action of the complainant in so far as it constitutes a breach of ... the requirement". Here the act was the writing of the letter of 4th January 1989 and the manner of doing it was the peremptory manner without warning or discussion.

As support for this submission he points first to the provisions of S.75A(4) and asks what is there remaining to be considered than the manner of executing the act which constitutes the breach of the requirement? Secondly, he points out that S.58 permits a finding of automatic unfairness with the liability to monetary awards under all three heads, the last of which (special award) is really a penal provision on employers and his interpretation of S.72A would allow a court to ameliorate the effect of an employee's absolute right. It would be common sense to be able to say to a complainant "You must act reasonably".

We were referred by him to LYON v. ST JAMES PRESS LTD [1976] ICR 413. In that case the employers were a small publishing company with a manager and about 13 employees of equal status who were consulted about important issues. In 1975 two of the employees, members of the National Union of Journalists, persuaded a number of other employees to join the union and form a chapel. They did not inform the manager of their activities and did not approach those employees who would have been unlikely to join the union. The employees were dismissed for secretly soliciting union members and forming a chapel. The Industrial Tribunal found in favour of the employers and on appeal this Court under the Presidency of Mr Justice Phillips allowed the appeal. The passage to which we were referred is at p.418D where the learned Judge says:-

"Where an applicant who is alleging unfair dismissal has been engaged in trade union activities at the time of the events leading up to the dismissal and there is a connection between those activities and the conduct alleged by the employer to have justified dismissal in the terms of paragraph 6(8), the industrial tribunal hearing the case has a difficult task. The marks within which the decision must be made are clear: the special protection afforded by paragraph 6(4) to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate."

In our judgment it is necessary to look at Sections 72 to 75A as whole. Above S.72 there is subheading in Part V of the 1978 Act which reads, "Amount of Compensation". Section 72 reads -

"Compensation for unfair dismissal

Where a tribunal makes an award of compensation for unfair dismissal under section 68(2)(a) the award shall consist of -

(a) a basic award (calculated in accordance with section 73), and

(b) a compensatory award (calculated in accordance with section 74), and

(c) where the dismissal is to be regarded as unfair by virtue of section 58 or 59(a), a special award (calculated in accordance with section 75A);

but paragraph (c) shall not apply unless the complainant requested the tribunal to make an order under section 69, and shall not in any event apply in a case within section 73(2)."

Under the method of calculation of each award there is a power to make a reduction. For basic award S.73(7B) reads -

"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) ... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

For the compensatory award there are the two provisions, S.74(1), the "just and equitable" test and S.74(6), conduct by way of "contribution". It has been termed the contributable negligence defence. These provisions were considered by this Court recently in SLAUGHTER v. C BREWER & SONS LTD [1990] ICR 730.

So far as the special award is concerned the calculation is made pursuant to S.75A(4) which reads -

"(4) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

We note the wording in S.73(7B) and S.75A(4), "... any conduct of the complainant before dismissal ... was such that it would be just and equitable to reduce ...". The wording in S.74(1) is wide enough to include such a notion. In none of these provisions does the word "contribute" occur.

Thus when a S.58 dismissal has been found to have occurred there is power to reduce any of the three awards - "for any conduct of the complainant before dismissal ...". That this is so is recognised by S.72A(2).

How then does S.72A fit into this scheme? It seems to us that it concentrates on the actual breach of the requirement upon which the principal reason for dismissal has been found to rest and orders that the specific circumstances surrounding the exercise of the right not to comply with the requirement under S.72A(3) should be excluded in considering reduction of any of the three awards.

The provisions of S.58 are included the 1978 Act to protect employees and to discourage employers from dismissing in those circumstances. If the conduct of an employee prior to dismissal deserves to be criticised, the power of reduction is there, but the immediate circumstances giving rise to the finding of the principal reason for dismissal are to be excluded. In other words the complainant has a right not to comply with the requirement under subsection (3).

It is not quite clear to us how this Industrial Tribunal would have applied its findings to the construction of S.72A and the other Sections which we have indicated above and we take the view that the appropriate course is to remit the issue of compensation to this Tribunal for a fresh hearing.

However we must proceed to the cross-appeal. Mr Fisher submits that the Tribunal erred in its approach. It is common ground that after giving its decision on liability it returned and asked Mr Giffin whether he wished to argue "contribution". This he did. There was however no further evidence.

As we have already indicated the finding was "... that the applicant's conduct in resigning from the union without seeking prior discussion was confrontational and if not bloody-minded was certainly unreasonable". It is common ground that this was not specifically put to Miss Howard.

Mr Fisher submits that there had been a long history in this matter which showed that both sides knew of the problem, it concerned independent representation; that the result was inevitable and that no act or attitude of the Applicant could have altered the situation; once she ceased to pay her contribution she was no longer a member of the T & G and dismissal was inevitable; and finally, that the question of confrontation was not between Miss Howard and the T & G, that issue was clear, it was between the T & G and APEX as evidenced by certain letters, in particular a letter from Mr Todd to APEX dated 5th April 1989.

Having read the Notes of Evidence and the documentation we have formed the view that Mr Fisher's submissions are well founded and that in the outcome we should allow both the appeal and the cross appeal. The Industrial Tribunal can arrange the rehearing as it sees fit, but we would suggest that the specific issues are put to Miss Howard. Having made its findings of fact and reached its conclusions, the Tribunal can consider whether to apply the provisions of Ss.73 or 74 or 75A in order to reduce the award for "conduct before the dismissal". As we have understood the present approach it is that "prior discussions" were not part of the circumstances immediately surrounding the breach of the requirement under S.72A. That act was the letter of resignation.

However it will be open to this Industrial Tribunal to consider all these aspects afresh in the light of this judgment. It follows therefore we allow both appeals and the matter is remitted for a further hearing in front of the same Industrial Tribunal.