United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 762_95_0304

Appeal No. EAT/762/95

EAT/1118/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd April 1996

Before

HIS HONOUR JUDGE N BUTTER Q.C.

MR E HAMMOND OBE

MR J A SCOULLER

---

MR A A CROWTHER          APPELLANT

BRITISH RAILWAYS BOARD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR JOHN BOWERS

(of Counsel)

Messrs Battinson & Brewer

Solicitors

30 Great James Street

London

WC1N 3HA

For the Respondents MR W NORRIS

(of Counsel)

Messrs Vizards

Solicitors

42 Bedford Row

London

WC1R 4JL


 


JUDGE BUTTER Q.C.:

Background

The appellant was at the relevant time a railway conductor/guard at Manchester Piccadilly Station. He was also one of four members of staff on the Local Departmental Committee ["LDC"], a joint management and union committee. Further he was an active and committed member of the National Union of Railwayman which later became part of the Rail Maritime & Transport Union ["RMT"].

There was a long history of turbulent industrial relations at the station, particularly in respect of conductor/guards. One of the main issues in dispute involved the use of drivers in training as relief conductor/guards. In February 1991 agreement was reached with the management that drivers would only be utilised for guard duties where the train crew supervisor on the day found that he was unable to cover a service and faced the possibility of cancellation. This agreement was subsequently reiterated. But on the morning of 20th August 1992 the appellant, who was seconded to perform duties as an LDC representative, discovered two drivers in training sitting in a mess room apparently acting as cover for guard duties. This led to an immediate confrontation with management. During the afternoon the appellant and others were engaged in speaking to guards to co-ordinate action designed to ensure that no guard would take out trains on that day. As a result, a substantial number of services had to be cancelled. No regard was paid to the recognised procedures for negotiation, and similarly, as the management decided that the action was unofficial and that summary dismissal would be justified, no attempt was made to comply with the appropriate written disciplinary procedures.

Later that afternoon the appellant and others were on Platform 11 in the presence of a large number of fellow employees when representatives of the management, having ascertained that a particular guard was refusing to take out a train on the basis that the LDC members had said there was a dispute, issued letters of summary dismissal to the appellant and other members of the LDC.

The industrial action continued for a short time but it was formally repudiated by the RMT on the following day and the repudiation took effect on 22nd August. On 26th August the RMT held a ballot as to whether there should be industrial action in sympathy with the dismissed men. The majority voted in favour, but the strike was called off because of appeal hearings. The appeals were refused with the result that further strike action was initiated. On 17th September 1992, however, Laws J. granted an interlocutory injunction to the British Railways Board in effect forbidding the strike action to take place.

Decisions of the Industrial Tribunal

The appellant with three others issued originating applications in the Manchester Industrial Tribunal. Each claimed to have been unfairly dismissed for trade union activities. By virtue of the then provisions of Section 62A of the Employment Protection (Consolidation) Act 1978, now Section 237 of the Trade Union & Labour Relations (Consolidation) Act 1992:

"(1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action."

The respondents took the point that the tribunal had no jurisdiction to hear the applications and the matter therefore came before the tribunal on a preliminary issue. For reasons which were sent to the parties on 29th July 1994, the tribunal concluded ["the preliminary issue decision"] in the light of the then statutory provisions that the industrial action of 20th August 1992 must be regarded as official action prior to the repudiation by RMT and that therefore it was official at the time of the dismissal of the applicants. Accordingly the tribunal held that the applicants were entitled to bring their applications for unfair dismissal. For reasons which will appear later, that decision is relevant although there is no appeal in respect of it.

The main hearing occupied seven days in January 1995. The decision ["the liability decision"] was sent to the parties on 26th May 1995. The unanimous decision of that tribunal was that all four applicants had been unfairly dismissed, but not for reasons connected with trade union membership. It was further held that the applicants had contributed to their dismissal by their conduct and that any award of compensation should be reduced by 25%. The issue of remedy was stood over until 5th June 1995.

On the latter date it was announced that terms of settlement had been reached in respect of the former employees other than the present appellant. The tribunal went on to consider whether or not to order the appellant's reinstatement. By a majority decision ["in the remedies decision"] and for reasons sent out to the parties on 29th August 1995, the tribunal refused that application. An open offer of compensation was made to the appellant which he accepted whilst reserving his right of appeal in relation to the general issue of liability and the decision concerning reinstatement.

As the appellant had succeeded in establishing liability for unfair dismissal, it might well have been thought that this was sufficient for his purposes. He appeals, however, as he is entitled, in relation to liability on the basis of his contention that the tribunal should have decided that he was dismissed for trade union activities. He further appeals against the refusal of the majority in the remedies decision to order reinstatement.

The Liability Decision

One of the issues which we have to consider is whether the Industrial Tribunal was entitled to find that the principal reason for the dismissal was misconduct as distinct from taking part in trade union activities. It is necessary for us to consider the relevant statutory provisions but in the meanwhile it may be convenient to set out some of the key passages in the decision which have been subjected to criticism by Counsel for the appellant.

The Industrial Tribunal reviewed the evidence in detail and set out its conclusions in paragraph 11 of the extended reasons. The tribunal said:

"(v) There is no doubt that the respondents managements regarded the applicants as generally obstructive and confrontational, and in that sense they welcomed the opportunity to dismiss the applicants when it arose; but that is not to say that there was any sufficient evidence that the applicants were manoeuvred into taking the action they did, and we therefore conclude that the cause of the applicant's dismissal was the events which occurred on 20 August, and not a deliberately engineered plot against them."

Criticism is made of the word "therefore" which it is suggested is illogical. The tribunal went on to say, however:

"(vi) In considering the true reason for the applicants dismissal, the Tribunal must ask itself what was uppermost in the minds of the respondents managers when the decision to dismiss was taken. In this case, we are satisfied that the matters uppermost in the minds of all the managers who were party to the dismissal was genuinely the applicants misconduct in allegedly inciting or encouraging industrial action outside the recognised procedures., and that the applicants behaviour on 20 August was genuinely the reason for their dismissals."

Yet further, the tribunal said:

"(vii) It follows that the reason for the applicants dismissals was the respondents belief that the applicants actions in initiating or furthering the industrial action on 20 August constituted gross misconduct;"

The tribunal amplified this under (xviii):

"There is little doubt that the respondent welcomed the opportunity to dismiss the applicants when it arose, but, having considered all the evidence before us, we do not find that the true reason for the dismissals was either the applicants past trade union activities or the respondents perception of the applicants trade union involvement in the future. It may well be true that the events of 20 August were the last straw which broke the camels back as far as the applicants were concerned, but, even if we approach the matter on that basis, we are nevertheless satisfied that the true reason for the dismissals was the immediate course of conduct and we reject the applicants submissions that more generalised reasons were at the heart of the decision to dismiss. In our view, the respondents management was very quick to seize the opportunity to dismiss when it arose, but the applicants were not dismissed because they were active and potentially disruptive trade unionists or because they were engaged in trade union activity on 20 August: the reason was entirely derived from the organisation of industrial action on 20 August which did not pay any regard to the usual and well-established negotiating procedures in the railway industry."

Among the various criticisms made on behalf of the appellant is that the tribunal sat on the fence rather than making an actual finding in using the phrase, "it may well be true that the events of 20 August were the last straw which broke the camel's back". We do not regard these or other criticisms made as to the way the tribunal expressed itself as being of substance. The reminder that we should not go through the decision with a fine toothcomb (an article which these days appears only to be used by advocates appearing before appellate tribunals) is apposite. In our view the conclusions of the tribunal are clear.

It is further argued on behalf of the appellant that the liability decision is inconsistent with the preliminary issue decision and that the tribunal applied the incorrect test in determining what could or did amount to trade union activities on the relevant day.

On that day Section 58 of the Employment Protection (Consolidation) Act 1978 was in force. Corresponding provisions are now to be found in Section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992. The effect of the section is that:

"(1) ... the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee-

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time.

...

(2) ... "an appropriate time" means-

(a) a time outside the employee's working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union;

and for this purpose "working hours", in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work."

In paragraph 11(xix) the tribunal dealt with the matter in this way:

"In this case, the applicants were authorised and rostered to carry out LDC activities on 20 August, and those activities derived from the applicants trade union membership (because only members of a recognised trade union could be elected to the LDC) but consisted of a specific range of responsibilities which did not include the incitement or organisation of direct industrial action without reference to accepted negotiating procedures. Consequently, in engaging in the organisation of the industrial action within their working hours and otherwise than in accordance with the consent of the respondent, the applicants did not fall within the provisions of Section 58 of the Act, and the Tribunal rejects the submission that the dismissals were related to trade union membership within the meaning of that section."

In the following sub-paragraph the tribunal explained why there was no inconsistency between the decision on the preliminary issue and the final decision, and pointed out that the provisions of Section 62(A) (see now Section 237 of the 1992 Act) were not co-terminous with those of Section 58. The tribunal stated:

We are therefore satisfied that these applicants were engaged in official action for the purposes of Section 62A, but did not fall within the provisions of Section 58 for the reasons set out above."

We recognise that at first sight there appears to be an inconsistency betweeen the preliminary issue decision and the liability decision of the Industrial Tribunal. In our view, however, the tribunal was entitled to conclude that although the industrial action must be regarded as official action prior to the repudiation by the RMT, the activities were in truth activities of members of the LDC. These members were rostered to carry out LDC duties but were not permitted to instruct guards to take industrial action. We consider that the tribunal was right to concentrate upon deciding what was the true reason for the dismissal.

We do not consider that the tribunal erred in law and we are satisfied that it was open to the tribunal to decide that the respondents dismissed the appellant because of their belief in his misconduct. The tribunal went on to explain the reasons for the decision that the appellant had been unfairly dismissed. The respondents do not seek to appeal against that finding.

Another aspect of the liability decision relates to the reduction of compensation by 25%. It is argued on behalf of the appellant that the tribunal was not entitled as a matter of law to reach that decision.

The tribunal correctly directed itself as to the statutory criteria; reminded itself that it should not embark upon a process of apportioning blame for the original dispute; directed itself that it should not necessarily consider all four applicants as being equally to blame. The tribunal held in paragraph 14 of its extended reasons that:

"(iii) In failing to have any regard to accepted negotiating procedures (which had been well-established for many years) the applicants conduct on that day was blameworthy and to a significant degree irresponsible in the various respects set out throughout paragraph 9 above.

(iv) That conduct of the applicants undoubtedly contributed to a significant extent in a causative sense to their dismissal."

The tribunal also took into account the blameworthy conduct of the respondents.

Reliance is placed by Counsel for the appellant upon the Court of Appeal decision in Crosville Wales Ltd v Tracey & Others [1996] IRLR 91, but in our view that case is of more assistance to the respondents. In concerned contributory fault in the context of discriminatory non re-engagement following dismissal after taking part in industrial action. The question posed, however, at paragraph 39 is in our view apposite. The Court said:

" The question, therefore, for the industrial tribunal at the stage of considering contributory fault is:

`Have these applicants been responsible, in addition to mere participation in the relevant industrial action, for any conduct of their own contributing to the dismissal which was sufficiently blameworthy to make it just and equitable to reduce their compensation."

The Court added this at paragraph 41:

" One can take, for example, a case where C and D have been leaders (official or unofficial) of the relevant industrial action. Their particular activities as leaders would represent conduct which could properly be made the subject of separate investigation by the tribunal, independently of any general action which it had inspired (or perhaps sought to restrain). If their own actions, when thus reviewed, were adjudged fair and reasonable and to have accorded with good industrial practice, no question of contributory fault would arise. If they were judged to have been over-hasty and inflammatory, there would seem to be no logical reason why the tribunal should not be free to say what contribution they are to be found to have made to their own dismissal and what abatement in their compensation is called for in justice and equity. Whatever the conclusion reached, the finding would be specific and limited to the conduct of particular individuals. No judgment would be involved upon the collective rights and wrongs of the relevant strike or industrial action."

On the facts of the present case we do not consider that any criticism can properly be made of the tribunal for reaching the decision that compensation should be reduced by 25%.

For these reasons we are of opinion that the appeal against the liability decision fails.

The Remedies Decision

The appellant wished to be reinstated. By virtue of Section 69(2) of the Employment Protection (Consolidation) Act 1978:

" (2) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed"

The tribunal has a discretion as to whether or not reinstatement should be ordered. Under subsection (5) the tribunal is required to consider a number of specific matters. In the present case the appellant wished to be reinstated and it was practicable for the respondents to comply with an order for reinstatement. The tribunal was required, however, in exercising its discretion to consider:

" (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement."

In exercising its discretion the tribunal is clearly entitled to have regard to the realities of the situation. In the present case the Industrial Tribunal expressed its decision in this way:

"2. The majority decision of the Tribunal is that it would not be just and equitable to order the reinstatement of the applicant Crowther, having regard to the extent of his contribution to his dismissal."

In paragraph 7 of the extended reasons, the tribunal said that:

"7. In considering whether it would be just and equitable to order reinstatement, the Tribunal took into account that:-

(i) Reinstatement is a primary remedy for unfair dismissal and the finding of contributory fault does not necessarily disqualify an applicant from claiming this remedy."

The tribunal then went on to review the factors in favour of and against reinstatement. Criticism is made of the fact that on two occasions the tribunal said that it was "an exceptional course" to order reinstatement against a background of contributory fault. The tribunal explained, however, that the majority view was that:

"The whole tenor of the evidence put before the Tribunal on both sides demonstrated that the atmosphere between the Mr Crowther and the respondents management is likely to be so poisoned in the event of reinstatement, even after a substantial lapse of time, that reinstatement is not an appropriate remedy; and the applicant's conduct on 20 August 1992 clearly demonstrated so great a distrust of his employers that the majority of the Tribunal is satisfied that he would be likely to prove an unsatisfactory employee if he were reinstated."

The minority view was then set out.

The editors of Harvey state at D2400 in relation to contributory action by the employee:

"Obviously it is going to be only in the most exceptional of circumstances that a tribunal will order reinstatement of an employee who has contributed to the dismissal in a blameworthy sense, for why should he then be treated as though he had never been dismissed?"

Each case must depend upon its particular facts. In the present case the tribunal clearly recognised that reinstatement is a primary remedy and, reading the decision as a whole, we do not consider that the majority can be said to have exercised its discretion on an erroneous basis. The reasons given by the majority are both realistic and compelling.

We conclude that the appeal in respect of the remedies decision fails.

Conclusion

For these reasons we are unanimously of opinion that the appeals in relation to liability and remedies must be dismissed.