United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 415_95_2007

Appeal No. EAT/415/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th July 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D G DAVIES

MR J A SCOULLER

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COLLIER INDUSTRIAL WASTE LTD          APPELLANTS

MR D LOGAN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR A GOULD

(Group Legal Advisor)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Colliers Industrial Waste Ltd against a decision of the Industrial Tribunal at Manchester on 7th November 1994 and 10th January 1995.

The Tribunal unanimously decided that the applicant Mr D W Logan had been unfairly dismissed. Colliers Industrial Waste Ltd were ordered to pay him the sum of £3,270.00.

The basis of the decision on liability was that the Tribunal found that Mr Logan had been dismissed as a result of taking part in the activities of an independent Trade Union at an appropriate time, and therefore his dismissal was unfair under the provisions of Section 152(b) of the Trade Union & Labour Relations Consolidation Act 1992.

The decision was appealed by Collier Industrial Waste Ltd by Notice of Appeal received on 12th April 1995. The grounds of appeal specify in some detail the respects in which it is argued that the Industrial Tribunal erred in law. Those points have been amplified in the skeleton argument produced by Mr Gould, the company's Group Legal Advisor. They have been explained by him in more detail at the hearing today.

The purpose of a preliminary hearing is to decide whether the appeal raises an arguable point of law. Having looked at the various points taken and at the reasoning of the decision, we are unconvinced at this stage that there is any error of law in the Tribunal's decision. The question whether or not the applicant has taken part in the activities of an independent Trade Union at an appropriate time is essentially a question of fact. In a very full and lucid decision the Tribunal set out their reasons as to why they found in the applicant's favour on that issue.

However, during the course of his submissions, Mr Gould referred a number of times to a recent decision of the House of Lords handed down three days after the Industrial Tribunal notified extended reasons for their decision in this case.

The case is Associated Newspapers Ltd v Wilson, [1995] 2WLR 354. Although the decision in that case was on a different set of statutory provisions there is a similarity in the point which arose in both cases on taking part in Trade Union activities. The House of Lords speeches are not easy to analyze in a short time. The House of Lords divided 3/2 on the question for decision. Four of the five Law Lords gave reasons for their decision, the fifth agreeing with two of them, Lord Bridge and Lord Browne-Wilkinson. Lord Slynn and Lord Lloyd dissented.

As is apparent from Mr Gould's skeleton argument, he relies upon passages from the speeches of Lord Slynn, Lord Lloyd and Lord Bridge. He referred to passages to support his argument. At first sight, they do not appear to us to have a significant impact on the correctness of the reasoning of the Industrial Tribunal's decision. Nevertheless, Mr Gould submitted that it was part of his case that the Wilson/Palmer case did have an impact on this one. If the Industrial Tribunal had had the judgments of their Lordships, they would have reached a different decision.

Those remarks all lead to this point. Although we are unconvinced by Mr Gould's arguments to the Industrial Tribunal, which were rejected by them, and are repeated on this appeal, and although we are unconvinced at present that the Wilson/Palmer case has a significant impact on the correctness of that reasoning, we think it better to allow this appeal to proceed than to deal with it finally today. It will go forward for the limited purpose of deciding what impact, if any, the House of Lords case has on this decision.

We add this. If, after a full hearing, the appeal is dismissed on the basis that the reasoning of the decision was correct and was unaffected by anything in the House of Lords case, this maybe a case in which the Tribunal would exercise its power under Rule 34 of Employment Appeal Tribunal Rules to order costs on the basis that it was an unnecessary appeal and that it was unreasonable to bring it and pursue it. We say that for this reason. It is sometimes said by unsuccessful appellants at a full hearing that it could not have been unreasonable or unnecessary for them to pursue their appeal when it had been before this Tribunal at a preliminary hearing and allowed to proceed. We make it clear that by allowing it to proceed today, we are not deciding that this case is legally arguable. The reason for letting it go forward is that we feel unable, in the limited time allowed for a preliminary hearing, to analyze with care that is needed, the effect of the Wilson/Palmer case.

The final point is this. In view of the time spent by the members of this Tribunal on studying the decision and Mr Gould's skeleton arguments, this appeal is to be heard at a full hearing, if possible, by a Tribunal composed as today.

Skeleton arguments on both sides are to be exchanged and lodged with the Tribunal at least 21 days before the full hearing.