United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C AGACE (of Counsel) Barlow Rowland Solicitors 18/24 St James' Street Accrington Lancashire BB5 1NY
For the Respondents	MR T LINDEN (of Counsel) Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


LORD JOHNSTON: This is the decision of the tribunal in the appeal by Mr James Brown in the case of himself against the Transport & General Workers Union. The appeal is taken against the finding of the Industrial Tribunal, that the appellant's admitted dismissal from his employment with the respondent union was not unfair.

The history of the matter as put forward helpfully by Counsel in his chronology and summarised by the Industrial Tribunal in their own findings, can be briefly stated as thus. The appellant joined the union as an employee in June 1988. Subsequently in the course of the latter part of 1993 when he was working as an official of the union at the Fawley Refinery Depot in Hampshire, problems arose with regard to the question of victimisation of a member of the union which the appellant took up initially with the trade union itself. He was advised to take the matter up with his Regional Secretary, Mr John Ashman.

Suffice it to say, that the history narrates or reveals that the relationship between these two gentlemen substantially deteriorated by reason of the fact that the appellant determined, rightly or wrongly, that Mr Ashman was effectively siding with the employer in the disputes that the appellant was seeking to have investigated, and therefore was not properly acting in the interests of the union. This view was conveyed by the appellant to the union General Secretary, Mr William Morris, on 1st December 1993.

Thereafter, putting it generally, various attempts were made for meetings to be held between the various parties involved to discuss the matter. But it became very apparent that for reasons which are best summarised in the bundle of papers at page 49, that the appellant was not willing to attend any meeting relating to the problems which was also attended by Mr Ashman. He therefore declined to attend meetings that were sought to be arranged by Mr John Adams, the Deputy General Secretary of the union, and as such, there was no contact officially between the union and the appellant until a meeting took place at the beginning of January 1994, between the appellant, Mr Morris, Mr Adams and Mr Bowie, representing the appellant, at which Mr Ashman was not present.

At that meeting on 11th January 1994, the union General Secretary instructed the appellant to return to work, which in due course the appellant declined to do, stating certain reasons. As a result, on 13th January 1994, he was suspended without pay by the General Secretary pending a hearing into what was alleged to be gross misconduct on the part of the appellant, namely a failure to return to work once instructed so to do.

Consequent upon this state of affairs, a disciplinary hearing was established to take place on 1st February 1994, and a letter informing the appellant of this was sent to him on 25th January 1994 containing or attached to it being a formal statement of complaint. The papers reveal that this letter was not received by Mr Brown until 28th January 1994; and his response was that he could not in fact physically attend the hearing which was to take place in Bristol, both because he was in Scotland and also because he lacked the means so to do.

As a result, the hearing took place in his absence on 1st February 1994, and consequent upon that the Finance & General Purposes Committee of the union dismissed the appellant following a hearing at which the recommendations of the disciplinary committee were conveyed to the Finance & General Purposes Committee by the General Secretary of the union.

On 7th February 1994, the appellant was informed of his dismissal and of his right to appeal, and he chose to exercise that right by an appeal to the Biennial Delegate Conference ["BDC"] which was not due to take place until July 1994. In due course that hearing took place, but the decision to sustain the dismissal of the appellant was made, and he has remained in that state ever since.

Against that background, the appeal was brought before us by Counsel on behalf of the appellant on two main thrusts. Firstly it was complained that in the consideration of the matter and in reaching their conclusions, the Industrial Tribunal had not taken in to account factors upon the evidence which they should have had recognition of, and if they had, they would have reached a different conclusion as to the understandings which they should have reached to justify the conduct of the appellant. Secondly, and more fundamentally perhaps, it was argued that the tribunal had not directed themselves to the proper test, albeit under reference to the case of Union Construction, Allied Trade & Technicians v Brain [1991] IRLR 60 upon the basis that the tribunal had looked at the matter entirely from whether or not the employee could have said to have acted unreasonably, while the proper test should be whether or not the employer in considering the conduct of the employee which has led to the dismissal, acted reasonably in effecting it.

In elaboration of those submissions, in the first place Counsel indicated under reference to his schedule to his skeleton argument, a number of factors of which complaint was made that should have featured in the decision or reflections of the Industrial Tribunal. Without rehearsing them all, the more important appear to be, firstly, that the union had not properly understood the fact that by the very nature of his complaints, it was unreasonable on the one hand and quite understandable on the other, not to expect the appellant to be present at any meeting or attend any meeting where Mr Ashman was present, since he was effectively the contradictor in the dispute. That was said to be a factor which bore heavily upon the reasonableness of the appellant not attending the various meetings. Again, there was a substantial complaint that the disciplinary hearing was unfair having regard to the inadequacy of the notice given; the fact he was not in fact there; and although allowed representation representation was not in fact available or present; and that effectively therefore both in terms of representation and material the disciplinary hearing panel was not properly advised and appraised on the appellant's position, and in that respect the tribunal again should have considered this bore heavily on the fairness of the overall position. Again on a selective basis, complaints were made that the hearing before the delegate conference which had been opted for by the appellant was also unreasonably conducted, both as regards the balance of the debate and the opportunities given respectively to the appellant on the one hand which was minimal it was said, and the union General Secretary on the other which was substantial it was said. This again constituted, it was said, an unfair aspect of the whole matter procedurally which bore heavily upon the Industrial Tribunal's obligations to consider the matter and they had failed properly to take these factors into account.

With regard to the second submission on the basis of the application of the test, Counsel relied essentially upon what the Industrial Tribunal actually say in paragraphs 18 and 19 of their decision, where it was submitted that properly read, and indeed as stated it has to be said in paragraph 19, all the tribunal were doing were placing themselves as it were in the mind of an observer to assess the reasonableness of the conduct of the employee which they determine on that test to be unreasonable. Nowhere, it was said, had the tribunal properly directed themselves to what the employer should have regarded as the reasonableness of the position with regard to the reasons put forward for the failure on the part of the appellant, firstly to attend meetings, and more importantly, not to go back to work which of course was the basis upon which he was dismissed.

Not, I hope summarising the submissions too shortly, what seems to us at the end of the day to be substance of the complaint tying up these two factors together, is, if the tribunal had taken into account of the factors that are complained of they did not, and they had thereafter looked at the matter from the point of view of a reasonable employer, the inevitable conclusion was that improper consideration had been given to the whole question of reasonableness of the conduct of the employee and accordingly his dismissal on these findings could not be regarded as fair. Finally, in this context, Counsel accepted that if these submissions were correct, the only real alternative was to return to a new Industrial Tribunal and start again.

In response to this, Counsel for the respondents pointed and I mean no disrespect in this respect, to the well-known passage in the same case where Donaldson LJ enunciates what he described as two of the essential commandments of the role of the Employment Appeal Tribunal in appeals of this sort with regard to re-hearings and the consideration of the factors that were before the Industrial Tribunal. In essence, Counsel submitted that the tribunal had directed themselves to the correct question, and upon the evidence, albeit they had not mentioned the considerable number of the factors complained of by the appellant, they had reached the conclusion which any Industrial Tribunal was entitled so to do.

Against this background, we have to say that it seems clear from the papers before us and from the evidence that was before the tribunal, that the nature of this dispute between the various union officials was obviously extremely acrimonious, and this is obviously a factor which had to be taken in account by the union in considering what steps it should take in dealing with the problems that were surrounding Mr Brown and his complaints. Having said that, we have quite clearly come to the view that the factors that we were being asked to take into account by Counsel for the appellant, however eloquently presented, are no more or no less an attempt, not very greatly disguised, to re-argue before us the issues that were before the Industrial Tribunal with regard to whether or not the employer had acted fairly under the provisions of the legislation, and in particular Section 57 of the old Act.

We confess in passing to have had some concerns about the way in which the actual disciplinary hearing was set up, in as much that it was sprung upon Mr Brown at fairly short notice, and he had certainly little time to prepare. However, if we are to make our own observations in this matter, it does appear that he had the means to get to Bristol despite the assertion otherwise because he was still in possession of a union motorcar, but even if that is an irrelevant factor, he could have surely got there in three days if he intended to. As regard preparation, we are not of the view that he needed any further opportunities to prepare for what must have been to him very familiar territory. We recognise that in many many cases any form of procedural unfairness will immediately give rise to presumptions that different results might occur; in the present case we are entirely satisfied upon the evidence that that was something which is unlikely to happen, and upon the attitude of the Industrial Tribunal, a view that they were entitled to consider, which albeit reading somewhat obliquely, we think they did.

That therefore leaves us with the main question as to whether or not in applying the law to these particular facts, the Industrial Tribunal misdirected themselves. We recognise that if paragraph 19 of the decision is taken in the abstract, it could well yield the inference, if not the express statement that they were considering only the position of the employee. But looking at the paragraph before, 18, and the substance of what the tribunal state, together with the facts they have found proved bearing upon the whole issue, we are satisfied that they were applying the correct test, namely whether or not the reasonable employer would in the circumstances have treated dismissal as a reasonable option in the context of the behaviour of the employee, which in turn can be assessed in this context in the converse situation as being unreasonable. This is an approach which we consider the Industrial Tribunal were entitled to take, even if they could have easily have taken a different view, and certainly it is not one in regard to the jurisdiction conferred upon us with which we are able to interfere.

For these reasons this appeal falls to be dismissed.

[Submissions from Mr Linden and Mr Agace with regards to costs.]

LORD JOHNSTON: We have very considerable sympathy with Mr Linden's application, and indeed I personally and we all have very considerable reservations as to whether this case should have been brought this far. But having said that, we are not satisfied that any practical consequence arises for making an order for costs, and therefore making strong disapproving noises, we are not actually going to make an order.

Legal Aid Taxation granted to the appellant.