United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN BOWERS (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA
For the Respondents	MR THOMAS LINDEN (of Counsel) Mr P Schofield Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE PETER CLARK: Mr George Shillito was employed by the Respondent, Van Leer (UK) Ltd as a fork lift driver at their factory at Hull where packaging is produced. The employer recognised the Transport & General Workers Union at the site. Mr Shillito was a member of the union and held lay office as the senior shop steward and as the union appointed safety representative for, as the Tribunal found, Line 8 within the factory.

On 21 June 1995 he presented a complaint to an Industrial Tribunal that he had been subjected to a detriment by his employer on the ground that he had performed functions as an acknowledged Health and Safety representative, contrary to Section 22A of the Employment Protection (Consolidation) Act 1978, now Section 44 of the Employment Rights Act 1996.

The background facts, as found by the Tribunal hearing his complaint at Hull on 16 October and 7 December 1995, were that a problem arose on Line 6 on the evening of 2 May 1995. Complaints had been made concerning an odour given off by a solvent manufactured by Croda Chemicals and used in the Respondent's production process. The Line was shut down.

The following morning production resumed on Line 6. Two employees complained about the odour to the Line 6 safety representative, Mr Crowley. The Line was again shut down and the employees moved. According to his evidence, Mr Crowley reported the matter to Mr Shillito at about 8.40 am. At 9 am the complainants asked what was to be done about their discomfort. Shillito and Crowley decided to fax the chemical data sheet off to a Mr Bourne, a research officer with the Union. Apparently Mr Bourne telephoned to say that the solvent should be taken off the Line and the affected employees should seek medical attention. It seems that at that stage Mr Shillito took over. He went to see Mrs Mackay, the first aider, and insisted, in a belligerent way, that the men be seen by the Company doctor or sent to hospital, and that he wanted a note from the Company if they refused to do that. Mrs Mackay sought advice and as a precaution, because such a fuss was being made, the medical staff sent the people to hospital. Two other employees, as the Tribunal put it, jumped on the bandwagon and they too were sent to hospital.

The employer decided that Mr Shillito's conduct merited disciplinary action. He was suspended on pay and charged with misconduct, namely that he did not follow the agreed laid down procedures with regard to raising a union concern or issue with management, and his actions on 3 May were not what one would expect of a responsible Trade Union Representative.

Pausing there, the employers safety manual procedures agreed with the union, provided that persons may be appointed by their union to represent workers as safety representatives on an area basis. The manual also provided that where employees were worried about the health and safety of working conditions they should raise the matter in the first instance with the supervisor and failing resolution inform their safety representative. Thereafter various stages are provided for involving that safety representative and the department superintendent, who may call in the Company safety adviser. Ultimately, the Company may invite the opinion of the Health and Safety Executive.

A disciplinary hearing was held on 8 June 1995, at which Mr Shillito was represented by Mr Allan, a full-time official of the union, before Mr Dunn, the factory manager. He found the disciplinary charge proved and awarded a written warning and two weeks suspension without pay. Mr Shillito appealed to Mr Butler, the business unit manager. Following a hearing held on 19 June Mr Butler upheld the finding of misconduct and ordered that the warning issued by Mr Dunn should remain on the personal file of the Appellant for six months. He restored the Appellant's basic pay for the two week period of suspension imposed by Mr Dunn, although the Appellant claims that he nevertheless lost overtime payments. At all events, it appears to have been common ground that, as a result of the disciplinary process, he suffered a detriment within the meaning of section 22A.

The specific statutory provision upon which Mr Shillito relied is to be found in section 22A (1)(b)(ii) of the 1978 Act, which provides, so far as is material:

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that -

(b) being a representative of workers on matters of health and safety at work, or a member of a safety committee -

(ii) by reason of being acknowledged as such by the employer,

he performed, or proposed to perform, any functions as such a representative or a member of such a committee."

On the facts as found the Tribunal dismissed the complaint. Their main conclusion is contained in paragraph 4(i) of their reasons dated 18 June 1996, namely:

"4(i) However, the management took the view that Mr Shillito was in fact acting outside his duties as the Line 8 health and safety representative. It is patently obvious to the Tribunal that he was doing so. He was confusing his role as a senior shop steward with that as a safety representative and he was acting as a senior shop steward in trying to use these matters to embarrass the company over health and safety matters."

The Tribunal continue:

"5. The company, in those circumstances, were totally justified in suspending him and going through their disciplinary procedure and issuing a warning.

6. In those circumstances it is clear that there is no merit whatsoever in the application, that it fails and is dismissed."

In this appeal Mr Bowers, on behalf of the Appellant, submits that the Industrial Tribunal fell into error by importing questions of the Appellant's reasonableness and motive into their considerations, for which there is no warrant in the statutory provision.

He invited our attention to the background to that provision. The starting point is the European Directive on which section 22A is based, Council Directive 89/391. Article 11(2) speaks of workers representatives with specific responsibility for the safety and health of workers taking part in a balanced way in consultations over such matters as measures which may substantially affect health and safety; Article 11(3) grants the right to such workers' representatives to ask the employer to take appropriate measures and to submit proposals to the employer to mitigate hazards for workers and/or remove sources of danger.

These aims, he submits, are reflected in the 1977 Regulations (SI 1977/500), which by regulation 4(1) provides that, inter alia, each safety representative has the function of investigating potential hazards and dangerous occurrences at the workplace (whether or not drawn to his attention by employees).

The scheme of section 22A draws a clear distinction between the protection afforded to safety representatives and ordinary workers. The latter, under section 22A(1)(c) to (e), must act reasonably in the respects there set out. No such qualification is imposed on the former.

We think that this approach to the legislation is correct, and is analogous to some extent to the protection afforded to those, such as shop stewards, taking part in trade union activities at an appropriate time for the purposes of the former section 152 of the Trade Union Labour Relations (Consolidation) Act 1992, that is the protection against dismissal for trade union activities. In Bass Taverns Ltd v Burgess [1995] IRLR 596, the applicant employee, a shop steward was, with the permission of his employers, addressing new employees on the merits of joining the trade union. In the course of his address to the new intake, he went, "over the top" in criticising management's approach to matters of health and safety. As a result he was disciplined, and then quit the employment claiming that he had been constructively dismissed.

An Industrial Tribunal declined to find that his dismissal was by reason of his trade union activities on the basis that he had abused the privilege granted to him by the employer. That decision was overturned by the Employment Appeal Tribunal, which was in turn upheld by the Court of Appeal. His claim succeeded.

In giving the judgment of the Court of Appeal, Pill LJ rejected the employer's submission that the permission granted to the Applicant by the employer was conditional upon his remaining within acceptable bounds, and that these had been exceeded by criticising the Company.

However, Pill LJ qualified his comments by relating them to the particular facts of that case.

At paragraph 14 he said this:

"I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term 'trade union activities' in s. 58 of the Act."

Reverting to the facts of this case, the question for the Industrial Tribunal was whether the Appellant was disciplined (that is, subjected to a detriment) on the ground that he was performing the functions of a safety representative, acknowledged by the employer. If that was the reason for his being disciplined, it is no defence that he intended to embarrass the Company in front of external safety authorities, or that he performed those functions in an unreasonable way, unacceptable to the employer. The complaint is made out.

However, looking at the Tribunal's reasons as a whole, we accept Mr Linden's submission that what the Tribunal found was that for three reasons safety representative activities, to put the matter compendiously, were not the reason for his being disciplined. Those reasons were, first that he was not the Health and Safety representative for the Line in question; that was Mr Crowley under the agreed procedures; secondly, he was not acknowledged as a safety representative for the purpose of acting outside the agreed procedures to which we have earlier referred, and third he acted in bad faith. His purpose was not to pursue a genuine Health and Safety matter (which the Tribunal doubted this was) but to pursue a personal agenda to embarrass the Company. This was not a case of mixed motives, but of an intention solely to embarrass the Company and not to perform the Appellant's acknowledged Health and Safety functions.

In these circumstances it seems to us that the general point of principle raised by Mr Bowers in this appeal is correctly stated by him. His difficulty is that the facts have been found against him. We cannot accept that the structure of the Tribunal's reasons is such as to show any error of law, nor are the reasons so inadequate that the Tribunal's reasoning is unclear. We are quite satisfied that on the facts, as found, this Tribunal was entitled to reach the conclusion which it did. Accordingly this appeal must be dismissed.