United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 797_95_2302

Appeal No. EAT/797/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd February 1996

HIS HONOUR JUDGE P CLARK

MR K M HACK JP

MR N D WILLIS

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MR S MOLONEY          APPELLANT

NORTH WEST LONDON MENTAL HEALTH (NHS) TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P MEAD

(of Counsel)

Employment Law Appeal Advisory Scheme


 


JUDGE CLARK: By an originating application presented on 16th December 1994 Mr Moloney, then employed by the respondent Health Trust as a Staff Nurse Grade E, complained that his employer had taken action short of dismissal against him for the purpose of preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for so doing, contrary to Section 146(1)(b) of the Trade Union Labour Relations (Consolidation) Act 1992, formerly Section 23(1)(b) of the Employment Protection (Consolidation) Act 1978.

The action short of dismissal complained of was that he was not considered for a temporary/acting post at a higher grade. The person appointed that post was an employee with less service. He alleged that he was not considered as a result of his trade union activities as branch secretary of the independent trade union UNISON.

The respondent resisted the application on its merits contending that he had been considered for the acting post, but had not been appointed due to his sick absence record.

At the time when the complaint was lodged at the Industrial Tribunal the state of the law as to the meaning of "action short of dismissal" was as elucidated by the Court of Appeal in Ridgeway v National Coal Board [1987] ICR 641, namely that action included omission. That was apparently the definition contained in Section 153(1) of the 1978 Act which provided:

""act" and "action" each includes omission and references to doing an act or taking action shall be construed accordingly;"

On 16th March 1995 the House of Lords delivered their opinions in the conjoined appeals of Associated Newspapers v Wilson and Associated British Ports v Palmer & Others [1995] ICR 406. That decision overturned Ridgeway. By a process of reasoning with which it is unnecessary to burden this judgment, their Lordships concluded by a majority that the definition of "action" in Section 153(1) must be disregarded upon the proper canons of construction of a consolidating statute such as the Employment Protection (Consolidation) Act. Action did not include an omission. Accordingly, from the date of the judgment in Wilson we have all been disabused of the misconception that action included omission simply because the Act and the Court of Appeal said that it did.

Mr Moloney's complaint came on for hearing before the London (North) Industrial Tribunal on 30th May 1995. Counsel for the respondent took the point that this was a complaint of omission, rather than commission. He relied on ABP. The tribunal accepted that submission. They dismissed the complaint without investigating the merits of the rival contentions.

This is a preliminary hearing, held to determine whether or not this appeal discloses an arguable point of law.

Mr Mead, on behalf of the appellant contends that case of ABP may be distinguished on the facts of this case. We find ourselves quite unable to distinguish the case. It seems to us that here Mr Moloney is complaining of an omission to consider him for promotion, and in not promoting him. That cannot be action short of dismissal, so the House of Lords has held. We are bound by that decision. The Industrial Tribunal was correct. We must dismiss this appeal.