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Cite as: [1993] UKEAT 532_91_2302

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BAILII case number: [1993] UKEAT 532_91_2302

Appeal No. EAT/532/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 February 1993

Judgment delivered on 22 April 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)

MRS M L BOYLE

MISS D WHITTINGHAM

DEPARTMENT OF TRANSPORT APPELLANT

MR J GALLACHER RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr D Pannick QC

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

LONDON SW1H 9JJ

For the Respondents Miss C Booth

(of Counsel)

Robinson Thompson & Partners

Compass House

Pynnacles Close

Stanmore

Middlesex HA7 4XL

MR JUSTICE WOOD (PRESIDENT) By a decision promulgated on 2nd August 1991 an Industrial Tribunal sitting at Bedford made a declaration pursuant to S.24(3) of the Employment Protection (Consolidation) Act 1978 (the 1978 Act) that the Applicant, Mr Gallacher had suffered discrimination under S.23. His employer is the Department of Transport which now appeals. This case is regarded by both parties as of considerable importance and one which is likely to be taken further. The Industrial Tribunal reached a unanimous decision and declared "that this complaint is well founded".

It is necessary therefore to analyse the complaint which is described by the Tribunal in paragraph 1 of its Reasons as follows:-

"This is a complaint concerning the right not to suffer action short of dismissal for trade union activities. The applicant sets out the substance of his case in his Originating Application and in Further and Better Particulars which were provided in response to a request by the respondents. He applies to the Tribunal to make an order under sections 23 and 24 of the Employment Protection (Consolidation) Act 1978, on the grounds that he has been penalised by his employers because of his trade union activities, in that they have stated that he would never be acceptable for promotion unless he gives up his trade union activities, and had refused to offer him a substantive post in which he could undertake some managerial responsibilities. Alternatively they are deterring him from continuing with these activities by blocking his promotion prospects. He sets out various matters from which he suggests the Tribunal should infer that the respondents' purpose was to penalise and/or deter him."

The relevant sections of the 1978 Act are:

"23. Trade union membership and activities

(1) ... every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of -

(a)preventing or deterring him from beinbg or seeking to become a member of an independent trade union, or penalising him for doing so; or

(b)preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or

(c)compelling him to be or become a member of [any trade union or of a particular trade union or of one of a number of particular trade unions]"

(This is now S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992).

"24. Complaint to industrial tribunal

(1) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of section 23.

(2) ...

(3) Where the tribunal finds the complaint well-founded it shall make a declaration to that effect and may make an award of compensation, calculated in accordance with section 26, to be paid by the employer to the employee in respect of the action complained of."

"25. Supplementary provisions relating to complaints under S.24

(1) On a complaint under section 24 it shall be for the employer to show -

(a)the purpose for which action was taken against the complainant;

(b) ..."

So far as this case is concerned, it is common ground that in approaching its decision under S.23 this Industrial Tribunal must have asked itself two questions -

(a) What was the "action (short of dismissal)" of which complaint was made?

(b) What was its "purpose"? What was the "intention" behind it? This is to be contrasted with its "results". (see Associated British Ports v. Palmer [1993] IRLR 63)

The difficulties raised by this section have been examined in other recent cases and it is a essential that a careful analysis is carried out before reaching a decision on the facts. It was suggested by Miss Booth for Mr Gallacher that we might derive some assistance from James v. Eastleigh Borough Council [1990] ICR 554. In that case however no question of "motive", "intention" or "purpose" was relevant, indeed exactly the contrary, as was pointed out by Lord Goff of Chieveley at p.576A:

"... It follows that, in a legal context, if words such as intention or motive are to be used as a basis for decision, they require the most careful handling, and it also follows that their use in one context may not be a safe guide to their use in another context."

We therefore find ourselves unable to accept her submission. We must look to the wording of S.23 itself and seek to apply it.

There was very little dispute on the facts, most of which were to be found in a bundle of documents.

The Department of Transport is a large organisation of some 15,000 civil servants. Mr Gallacher began his service with them in September 1973 in Scotland. He was an Executive Officer (EO). In 1979 he came to England and it was at that time he started to take time off for trade union activities. His Trade Union, the National Union of Civil and Public Servants (NUCPS) had a facilities agreement with the Department of Environment which at the time was responsible for the Department of Transport. This agreement was before the Tribunal and two paragraphs are relevant:-

"8. As far as possible management should apply the normal procedures for staff reporting, appraisal and career development for accredited representatives, and will take account of the knowledge, skills and experience demonstrated and gained in the time spent on industrial relations duties."

...

"11. In all cases the normal principles governing promotion should apply, and accredited representatives should be treated neither more nor less favourably than other staff."

On his transfer to England in 1979 Mr Gallacher was promoted to Higher Executive Officer (HEO) and gradually was granted more time off for his trade union activities. In the early part of 1986 he applied for promotion to Senior Executive Officer (SEO) but was unsuccessful, being marked "B-". In May 1986 he was elected to the post of Group Assistant Secretary of his trade union. This post is virtually full time and was considered full time for our present deliberations. There is one trade union post senior which is Chairman, but that was also held by an HEO. Neither post depended upon the grade of the individual and the job-holder might have been an EO, HEO or SEO.

Prior to 1986 his Annual Staff Reports (ASR) had been carried through in the normal way by his line manager. However, as group assistant secretary he had no line manager. The system of ASRs was therefore difficult to operate. Mr Gallacher had one annual staff report in 1989 which was carefully examined. As he had no line manager, there was nobody of a higher grade in the same line of business who could report upon him. Eventually agreement was reached that somebody who was not his line manager should report but do so in consultation with a Trade Union colleague. That colleague was unable to do the assessment himself, because he was also an HEO and therefore not of a superior grade to the Applicant.

In 1990 Mr Gallacher once more put his name forward as suitable for promotion to SEO. On this occasion Mr Gallacher after interview was graded "C+" which the Tribunal described as a "near miss". Mr Horton, the Chairman of the Board, told the Tribunal that it was the practice when they had a "near miss" candidate, to do their best to make helpful comments and to indicate how he might become successful in the future. On this occasion there were 54 unsuccessful candidates, of these 15 were considered "near misses" and were advised one way or another how they might improve their promotion prospects for the next time. These 15 included Mr Gallacher.

In the view of the Board Mr Gallacher's difficulty was that he had had very few ASRs. It was their practice only to go back three or four years, but in his particular case they went right back to 1980 because they had so few reports for the current period. Those earlier reports indicated that the Applicant had been judged to have an abrasive temperament in various ways and that his relations with his subordinate colleagues had not always been very easy. Since being appointed group assistant secretary of his Trade Union in May 1986, Mr Gallacher had done no management work at all and a directive had been sent out to the effect that candidates had to demonstrate managerial ability.

The comments of the Board, which are important for the decision, are set out by the Industrial Tribunal in paragraph 5(ix). They say:

"(ix) The Board set out their comments very clearly: "But", Mr Horton wrote, "reading carefully through his file we could not set aside the serious doubts about his managerial ability and attitude and his relations with others. We noted that he has not had an official job for several years and to promote him on the basis of half an hour's performance, however exemplary, would be too much of risk. We had very much in mind Mr Stringfellow's comment on his last ASR 'I would not accept him on promotion now since it is four years since we have seen any official work from him'. Mr Gallacher now has to decide, as one of his early ASRs says, he 'could be outstanding'. But before he is promoted he needs to demonstrate that all his old problems are behind him by holding down a job in the line. He can do it, as this Board intimated, but we must be sure the will is there."

Mr Gallacher was told that he had not been successful in his bid for promotion. He did not know why and went to see Mr Wise, his career development officer. The Tribunal had before them a note made by Mr Wise at the time and upon which the Tribunal relied. It read:

"He regarded the comments I read to him from the report as implying that his union activities were preventing his being promoted. I pointed out that the emphasis was really on doubts about his managerial ability and attitude and his relations with others, but the union point is certainly there on the Chairman's report and in his ASR. He may pursue this, but he talked anyway about returning to official duties on at least a 50% basis."

The last report which the Board had before them was 1987/88 in which Mr Gallacher had spoken of returning to official duties on a 50% basis. Having heard what was said about him, Mr Gallacher took the matter up with the "approving officer" who had approved the Promotion Board's report and recommendation. He presumably had approved the fact of failure and the comments made. He was Mr Bishop. The Tribunal deal with that interview and what followed thereafter in paragraph 5(xiii):

"(xiii) It is not necessary to go through the correspondence, which is all in the bundle. Mr Bishop offered the applicant another Board. The applicant considered that he had extremely well on his first interview and, if he was seen by another Board, he could only do worse. He did not feel that it would get him anywhere, although Mr Bishop tells us that these Boards are semi-independent, and that one Board might very well make a different recommendation from an earlier Board. At any rate, he did not take advantage of this offer. He made this complaint. He told us, while giving evidence, that he was not asking for compensation. He was merely asking for a declaration."

In considering "action", two possible findings have been put forward during submissions. The first is the failure by the Board to pass Mr Gallacher for promotion. The second is the recommendation implicit in the comments by the Board, "Mr Gallacher now has to decide, as one of his early ASRs says, he "could be outstanding". But before he is promoted he needs to demonstrate that all his old problems are behind him by holding down a job in the line. He can do it, as this Board intimated, but we must be sure the will is there." This comment must clearly be linked to the earlier passage from the Board "that we could not set aside the doubts about his managerial ability and attitude and his relations with others."

The "purpose" alleged was "to prevent or deter the applicant from taking part in trade union activities or to penalise him for so doing."

Before returning to these issues it is necessary to examine some specific findings of the Tribunal.

"9. We have been referred to the policy of this Act. The policy is clearly to make sure that trade union activities can be carried on without let or hindrance. Having listened to the evidence and having read the documents, we are satisfied that there was never any intention on the part of the respondents of hindering any independent trade union activities. Among the 15,000 civil servants there are a great many (we do not know the exact number but we are assured there are a great number) who are involved in trade union activities. The Whitley Council, which is involved in settling terms and conditions of employment, consists of two sides: the staff side and the official side. It is clearly part of the organisation of the respondents to have an efficient and active trade union representation.

10. As far as the action short of dismissal in this case is concerned, it is the whole report of the Board - their finding that the applicant was not to be promoted this time, and the rider giving him certain advice as to what he should do if he was to be promotable. We agree with Lord Meston that the recommendation was reasonable, well-intentioned and common sense. The applicant himself agreed that the points made by Mr Wise (and Mr Wise was careful to tell us that it did not amount to advice) were reasonable. He had gone to him as a career development officer; he had told him what he felt he should do to develop his career. This involved taking a job in the line so that he could prove that any personality difficulties were behind him.

11. Mr Horton tells us that, in the civil service, to get on, one often has to change one's job. No doubt for many of these 15 who failed and were advised what to do, advice such as that given to the applicant was appropriate. In this case, however, if the applicant was to take a line job, it would inevitably mean that he would have to restrict his activities in the trade union.

12. In our view it is absolutely clear that the comments were intended to deter the applicant from continuing with his 100% or 80% as may be, trade union activities. It is not like the Leeds case. In that case the tribunal held that the action was not deliberate. In this case, the action was clearly deliberate - although essentially well-intentioned. We can well understand the directive given to the Board that, before somebody is appointed to a higher grade, he must demonstrate management skills. The difficulty lies in the facilities agreement, which lays down that, in all cases, the normal principles governing promotion should apply, and accredited representatives should be treated neither more nor less favourably than other staff. There is no evidence to suggest that the applicant was treated either more or less favourably than other staff. Other staff were no doubt advised that they should have more line management experience. In their case no doubt the advice was helpful, and, as Mr Bishop tells us, they could take or leave the advice as they wished.

13. For somebody who spent 80% or 100% of his time in trade union activities, such a recommendation, however, was intended, in our view, to deter him from spending so much of his time on trade union activities. It was given to him in his best interests. One could well understand why the respondents would need management skills to be demonstrated before promotion. For a trade union representative like the applicant, however, that would necessarily mean that he would have to reduce his trade union activities."

Having made these findings which are the nub of the decision, the Tribunal then make their comments in paragraph 14 as follows:

"We are bound to say that none of us finds it at all easy to understand why this complaint was made. As Lord Meston has pointed out, the position created by the interaction of the facilities agreement and the Act is a difficult one. One would not suggest that the respondents are obliged to promote unsuitable people, and we certainly would not quarrel with their desire to see experience in line management proved before promotion. Fortunately it is not for us to resolve these matters; it is merely for us to say whether there has been action short of dismissal for the purpose of deterring the applicant from taking part in the activities of an independent trade union."

The first point to make is that there is no finding that there has been a breach of the Facilities Agreement.

The next issue is to define the "action". In paragraphs 6, 7 and 13 the Tribunal refer to "recommendation". In paragraph 12, to "comment". Insofar as this is a correct analysis we agree with Mr Pannick that the giving of a choice or mere recommendations can scarcely be described as "action". No actual advice was given.

If the "action" was the decision not to pass for promotion, then the basis in the Board's comments are clearly that they "could not set aside the serious doubts about his managerial ability and attitude and his relations with others ... but before he is promoted he needs to demonstrate that all his problems are behind him for holding down a job in the line."

The case for Mr Gallacher, as understood by the Tribunal, is set out in paragraph 7 of the Decision as follows:

"Miss Booth has argued that the effect of the recommendation, which was part and parcel of the action of the Board, was a deterrent. She is not suggesting that there was any intention to penalise the applicant. She says that it must have been a deterrent. He was told that he would not be promoted unless he had a line job for a spell. He could only do a line job if he gave up his post as assistant secretary and reduced his trade union activities."

Throughout that passage the Tribunal is being urged to look at the effect on Mr Gallacher. Mr Pannick has submitted, and we agree, that the error into which the Tribunal fell in the present case was to fail to distinguish between the purpose and the effect of the action.

It seems to us on the reasoning which we have already set out, that there was a confusion of thought in the Industrial Tribunal and some contradictory findings. In refusing promotion it was thought that it was reasonable, well intentioned and commonsense that the post of an SEO should be filled by a properly qualified candidate. There was an express finding that there was no intention on the part of the Respondents of hindering any independent trade union activities. There was no evidence to suggest that Mr Gallacher was treated either more or less favourably than other staff and that other staff had been advised they should have more line management experience. That the advice was given to him in Mr Gallacher's best interests and that the Tribunal could understand why the Department would need management skills to be demonstrated before promotion. There was no finding that the Board expressed any views one way or the other as to whether the Applicant should give up his trade union activities. It was left to him.

However, against those findings Miss Booth for Mr Gallacher points out that in paragraph 12 the Tribunal found that it was absolutely clear that the comments were intended to deter the Applicant from continuing with his trade union activities; that the action was clearly deliberate or essentially well intentioned.

Then again there is the finding that the Tribunal could well understand the directive given to the Board that before somebody was appointed to a higher grade he must demonstrate management skills.

In paragraph 13 it is said that the recommendation was intended to deter Mr Gallacher from spending so much of his time on trade union activities, and again that although he could choose for a person in his position it would necessarily mean that if his choice was to continue with his career he would have to reduce his trade union activities.

All those conflicting findings seem to us to emerge from paragraphs 9 to 13 of the Decision to which we have already referred.

The Tribunal in paragraph 14 comment on the difficulties which they find in the decision before them. They accepted that employers should not be obliged to promote unsuitable people and that they understood the desire to see experience in line management proved before promotion. Setting that against the other matters, they indicate that they are not intent on resolving the problems confronting them but simply to apply the wording of the Act.

It seems to us that if the Industrial Tribunal had asked themselves the two questions which are agreed to be the questions which should be asked, then at the very least they might have come to different conclusions either one way or the other. It follows therefore that in our judgment this matter must be remitted for a fresh hearing before a different Tribunal.

However, before leaving this case and as it is said to be a matter of great importance in industrial relations, the industrial members of this Tribunal feel that it is right to emphasise the view that unless the provisions of S.23 are carefully analysed and the issues separated, there is a danger that applications under it may tend to exacerbate industrial relations rather than to ensure that discrimination against trade unionists is stamped out. The purpose of the section is to eliminate discrimination not to introduce positive discrimination. It may very well be that occasions arise where the job, the post, the appointment sought by way of promotion requires particular skills or qualifications and there may therefore be occasions when an employee will have to decide between career or trade union activities. If, for instance, promotion were obtained without such skills or qualifications and the full time trade union activities subsequently ceased, then the Applicant would be entitled to continue in that post, job or appointment and the lack of such skills or qualifications could, in some circumstances, constitute a detriment to the business or establishment. For instance, if working in posts within engineering or technical works, or in the Health Service, continual updating of systems methods and work practices is essential.

In the present case Miss Booth for Mr Gallacher submits that in accordance with the declaration of the Industrial Tribunal Mr Gallacher should be passed as fit for promotion to SEO when a vacancy occurs for a post of that grade. However, if on application for the post those making the decision thought that he did not have sufficient line management experience and refused to appoint him, then there would be an application alleging that he had suffered a detriment as a result of failure to appoint him. The problem of his suitability would merely have moved forward one stage.

Appeal allowed and case remitted. Leave to appeal.