United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR JASON COPPEL (of Counsel) Messrs Richmonds Solicitors Richmonds House White Rose Way Doncaster DN4 5JH


 


MR JUSTICE KIRKWOOD: This is a preliminary hearing in an appeal by an employer against a unanimous decision of an Industrial Tribunal sitting at Sheffield on five days between August and December 1996, that the employee, Mr Crummey, was unfairly dismissed for an inadmissible reason namely that he had taken part in the activities of an independent trade union at an appropriate time.

Northern Rubber Company is an old established business employing some 300 people. Mr Crummey worked there in the mould shop from July 1976 until 17th June 1996 when his employment ended. From 1991 Mr Crummey was shop steward for his union, GMB. Prior to 1995, for 19 years that is, he encountered no trouble in his employment and had an unblemished disciplinary record.

Mr William Middleton was the employer's products manager, and his was a senior position. Mr Crummey and Mr Middleton became friends because they both supported Manchester United, as did Mr Middleton's brother who also worked for the Company. They travelled together to watch the football games.

In about October 1994, two female employees at the factory complained that they had been sexually harassed by Mr William Middleton. That was of course a sensitive issue. The GMB decided that Mr Crummey as senior shop steward should investigate and prepare the case on behalf of the two complainants. That state of affairs inevitably effected the personal relationship between Mr Crummey and Mr William Middleton, and indeed Mr Middleton's brother.

Mr William Middleton told the Industrial Tribunal that that did not however effect his working relationship with Mr Crummey. Mr Crummey thought that it did. Indeed he believed that his union duties on behalf of the two women complainants eventually led to this dismissal.

Between May 1995 and 16th May 1996, Mr Crummey, of hitherto unblemished record was formally disciplined on no less than four occasions. On 16th May 1996 he was dismissed for gross misconduct.

Accordingly, the Industrial Tribunal went to a very great deal of trouble and into very considerable detail in examining the events of 1995 to 1996. Its enquiries and conclusions are set out very fully in the extended reasons sent to the parties on 14th February 1997. It is not necessary for us to go through it all.

The first disciplinary matter related to events on 9th May 1995. The tribunal dealt with that in paragraphs 16 onwards and then said that:

"18. The applicant was subsequently disciplined and this was dealt with by Mr Shackley. The upshot was that the applicant received a final written warning, the respondent having perceived it to be gross misconduct. The final written warning was given because the applicant had allegedly:

(i) Used intimidating behaviour towards supervision and other employees.

(ii) Refused to carry out a reasonable lawful instruction."

The tribunal then gave their consideration to those matters and they said that the behaviour was in no way intimidating. It merited a strong word in the ear, rather than a first written warning. They then rejected the employer's case of refusal to carry out a reasonable lawful instruction.

There then followed a number of smaller matters in respect of which the tribunal made no finding adverse to the Company.

The second major matter was 15th January 1996 which the tribunal considered very fully. It suffices to say that the tribunal concluded that the employer's actions vis-à-vis Mr Crummey on that occasion was "over the top".

On 28th February 1996 there was a complaint that Mr Crummey's work was not up to standard. There was a later disciplinary hearing but no action was taken. There was then a further complaint on 6th March 1996 which eventually led to dismissal. The tribunal investigated that very fully as well.

Having considered all those matters in the most careful extended reasons, the tribunal concluded this:

"39. Our overall view, having considered all the facts and our conclusion as to them, is that the strong inference to be drawn is that the employer in this case was less than happy about Mr Crummey's involvement on behalf of his Union in investigating and supporting the complaints of sexual harassment against Mr Middleton. ..."

Then the tribunal refer to its overriding feeling that:

"... all or most of what happened from early 1995 onwards and the manner in which it occurred stemmed principally from the fact that the members of the respondent's management team were less than happy with and, more so, aggrieved by the applicant's Trade Union role on behalf of the two women. ..."

In paragraph 41 the tribunal say this:

"41. Having considered the case in its entirety very carefully indeed we arrive at the strong conclusion that in his employer's eyes the applicant had blotted his copy book by being involved as he was in his Trade Union role on behalf of the two women complainants in the sex harassment case. We believe, sadly, that his superiors were, thereafter, gunning for him. Whilst the charges brought against him were not spurious in that they were not fabricated, management dealt with the incidents in a way they would not, in our view, had done prior to September/October 1994 and went well over the top in dealing with them. We think Mr Brearly put it succinctly when he suggested that the respondent was 'over egging the pudding'. That was the case here in our view and it resulted ultimately in the dismissal of this long serving applicant. The respondent ultimately dismissed Mr Crummey for reasons and in a way which, had he not been involved on behalf of the women in 1994/1995, just would not have happened. He would be there now were it not for his Trade Union activities on the workers' behalf of that we are quite convinced. ..."

The appellant Company seeks to argue first of all that the tribunal employed the wrong test. It is said that it applied a "but for" test which is applicable in sex and race discrimination cases, but not to unfair dismissal, and reference is made to s.98(1) and (2) of the Employment Rights Act 1996 which I do not need to read into this short judgment.

We reject that submission. The Industrial Tribunal posed the correct test in paragraph 37 of its extended reasons:

"37. It is necessary for us to determine whether or not the reason or the principal reason, for the applicant's dismissal related to the fact that he had been carrying out activities on behalf of his Trade Union. Is this what led his employer to dismiss him? The employer says not. ..."

In summary, the employee says yes.

The only foundation for this argument on behalf of the appellant, arises from the penultimate sentence of paragraph 41 of the extended reasons:

"He would be there now were it not for his Trade Union activities on the workers' behalf of that we are quite convinced."

First of all, that sentence must be read not simply in isolation, but in the context in which it appears in paragraph 41 to which I have already referred extensively.

Secondly, this is not, as we read the extended reasons, a substitution for the test, as correctly posed in paragraph 37. To the extent that the Industrial Tribunal may have put that in as a cross check of the conclusion that it reached, it did so in words that have enabled this ingenious ground of appeal to be formulated. But reading this decision as a whole, it is perfectly clear to us that the tribunal did not err in this regard.

Thirdly, the appellant seeks to argue that the tribunal wrongly substituted its own conclusions in the findings it made as to the handling of the disciplinary matters by the Company. This ground of appeal may sometimes be apposite when the question under consideration is that raised by s.94(4) of the Employment Rights Act 1996, that is a question relating to the dismissal, whether it is fair or unfair, judged according to the reasonableness or otherwise of the employer in all the circumstances. But here the tribunal was set on a wholly different task. It was looking, as indeed it had to look in the circumstances of this case, to see whether the remarkable spate of disciplinary matters over the twelve month period in the twentieth year of an otherwise unblemished career demonstrated the applicant's case that in reality this was the employer's reaction to his union activities. To do that, the tribunal was obliged to make a close investigation, which it did, and decide to what conclusion it was led from the investigation, that is to say what inferences it felt obliged to draw from it. This is not a case of a tribunal substituting its own view on a question of reasonableness. As I say, the tribunal was set on a wholly different task and we reject that ground of the appeal.

The fourth line of argument seeks to rely on perversity. The mattes relied upon in the Notice of Appeal are in part met by what we have said as to the function and obligation of the tribunal in this case. The appellant says that the tribunal failed to give weight to Mr Crummey's misconduct as a ground for dismissal. But it is necessary to repeat that the Industrial Tribunal correctly posed the question it had to ask and was looking for the principal reason. The quest was for the principal reason for dismissal, and the tribunal was not obliged to find any subsidiary reason. The rest of the matters of argument on this ground of appeal, go to detail in respect of which we are by no means persuaded of an arguable case of any perversity of indeed of any material significance in the overall considerations that led to the Industrial Tribunal's conclusion and accordingly this appeal will be dismissed at this stage.