United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR MICHAEL McPARLAND (of Counsel) Messrs Davies Wallis Foyster Solicitors 5 Castle Street Liverpool L2 4XE
For the Respondents	PROFESSOR ROY LEWIS (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MR JUSTICE KIRKWOOD: The issue in this appeal is whether the Industrial Tribunal was right to find that at the time of their dismissal the twelve respondents were not taking part in industrial action. The tribunal heard this case at Bedford on 12th and 13th February 1996 and gave its extended reasons on 28th March 1996.

That preliminary decision is important because s.238(2) of the Trade Union Labour Relations Act 1992 says that where, at the time of dismissal a complainant was taking part in industrial action the tribunal shall not, except in particular circumstances that do no apply in this case, determine whether the dismissal was fair or unfair, so the tribunal could not hear an unfair dismissal claim.

Eleven of the twelve respondents belong to Transport & General Workers Union ["TGWU"]. In their case the action surrounding this case was authorised by the union and in that sense was official and s.238 applies. The twelfth respondent, Mr Brown was a member of the Union of Associated Engineering and Electrical Workers ["AEEW"]. In his case the action was unofficial and s.237 applied so that if at the time of dismissal he was taking part in unofficial industrial action he would have no right of complaint of unfair dismissal.

The consequence of the finding of the tribunal was that none of the twelve respondents was or is precluded from pursuing a complaint of unfair dismissal. The employer, Mainland Car Deliveries Ltd, appeals.

Early in 1995 the respondents wanted a pay rise. Their employer, the appellant, would not meet their claim. On 17th March 1995 the District Officer of the union wrote to Mr Perkins, the Company's Operations Director, saying that the union intended to hold a ballot for or against industrial action in relation to the pay claim. On 24th March 1995, some but not all of the respondents took part in limited unofficial industrial action. On 27th March 1995, all of the respondents took part in limited unofficial action. That was called off at 2.p.m. that day against the Company's threat of dismissal.

On 10th April 1995, the union notified the Company of the result of the ballot, and gave notice that the employees identified, (identified that is by groups which included the respondents), would take part in the industrial action authorised by the ballot. At that stage no date was fixed for its commencement.

On 20th April 1995, the union wrote to Mr Perkins:

"Further to my letter of 10 April 1995, I hereby give you notice that your employees as described in my initial letter will be taking the following industrial action.

Monday 1 May 1995 - 1 day's strike action, and as from Tuesday 2 May 1995 there will be a restriction on overtime work and a withdrawal of co-operation. This action will be ongoing thereafter until a resolution of the dispute with the Company.

This notice is given for the purposes of Section 234a of the Trade Union & Labour Relations (Consolidation) Act 1992."

The wording of that letter has led to debate as to its construction. On the one view the action was to be continuous, starting with a day's strike on 1st May and continuing with a restriction on overtime working and withdrawal of co-operation from the following day, until resolution. On another view, the letter foreshadowed two separate courses of industrial action, namely a one day strike on 1st May, and then a continuing programme of action short of strike running from 2nd May.

On Sunday, 30th April 1995, a letter went from Mr Perkins by courier to each of the respondents. It was in fact dated 28th April and it said:

"Although your union has notified the Company of the results of the strike ballot, your proposed actions will still place you in breach of your contract and liable to dismissal. I must now formally put you on warning that it will be the Company's intention to dismiss any employee who supports or participates in the industrial action on 1 May 1995 or thereafter. You should also be advised you will have no remedy before any Industrial Tribunal should you be dismissed for taking part in such industrial action. The Company therefore expects you to report for work on 1 May 1995 and to work normally, otherwise you will be dismissed. Would you kindly sign and return the enclosed letter to confirm your intention to work normally."

Enclosed with that letter was a form of letter that each of the respondents was being required to sign which said:

"I wish to confirm that I hereby disassociate myself from all industrial action at the Luton Depot. I also confirm that on Tuesday 2 May and thereafter I will report for work and work normally in accordance with my terms of employment."

None of the respondents signed that letter.

On 1st May 1995, the threatened strike took place and all the respondents took part.

On 2nd May the respondents all went to work at their usual time between 6.30 a.m. and 7.30 a.m.. The gates of the Luton deport of the appellant company were locked against them.

At about 7.30 a.m. Mr Perkins, the Depot Manager, invited the Shop Steward, Mr Clark and his deputy, Mr Spowage, in for discussions. They are two of the respondents. Nobody made a note of what transpired in those discussions. Before the Industrial Tribunal there was an issue about how the discussion went, which the tribunal had to resolve.

The case for the appellant, the Company, was that the respondent's representatives were asked whether the men were prepared to return to work; whether the men would then work normally; and whether the men would sign the letter of disassociation. The case for the appellants goes on that the respondent's representatives then went to consult the men and returned to say that the men would return to work, that they would not work normally and that they would not sign the letters.

The respondent's case, however, was that the response to the Company from the respondents, the union officers having consulted the men, was that the men would return to work. It was denied that there was an effective overtime ban. It was said that the men would work normally and that the men would not sign the letter. They wanted to take advice upon it because it was in very wide terms covering all industrial action at the Luton depot.

The Industrial Tribunal having considered that conflict of evidence, and having read the written evidence put in as evidence in chief by the witnesses, and having heard the material witnesses giving oral evidence and being cross-examined, said:

"We resolve that conflict in favour of the Applicants."

That is to say the respondents to this appeal.

Accordingly the tribunal found for the respondents about the conversation on the morning of 2nd May 1995. The tribunal criticised Mr Perkins for not making contemporaneous notes, and whether such criticism is justified is another and separate matter which we need not address. The tribunal found as a further fact that Mr Clark and Mr Spowage:

"did not tell him [Mr Perkins] during the course of the meeting with him that the men would not work normally on that day."

What followed was that after the meeting all four men went to the factory gate, Mr Perkins had wanted to speak to the men individually, but was not permitted by their representatives to do so. The tribunal made a finding about that in these terms:

"7. At the end of the meeting in Mr Bowness's office the four men went to the depot gate where Mr Perkins sought leave to speak to each of the men individually but was told that Messrs Clark and Spowage were their spokesmen and that none of them would sign the "disassociation letter". Although we have Mr Perkins' evidence that at this time none of the men said that they were willing to return to work and work normally for the future, we regard it as of some significance that at no stage has he given evidence to the effect that at that time he asked them directly if they would work normally on that day."

That, superficially, curious last sentence disguises the fact that Mr Perkins had, as I understand it, addressed the assembled men at the gate, but had not spoken to them individually.

In the upshot Mr Perkins handed each man a letter of dismissal. It was dated the previous day, 1st May, and had obviously been prepared in advance and it said this:

"In support of your strike action against the Company you today have failed to report for work. You have also refused the Company's request to formally disassociate yourself from all industrial action as outlined in your union's letter to the Company dated 20th April 1995. Your actions place you in breach of contract. Further to the Company's letter of 28th April 1995, I am now writing to formally notify you that you are today dismissed from the Company's employ with immediate effect."

By that letter of 1st May, it appears to us that the Company was relying first on the action of striking on 1st May; and secondly, on the failure to sign the letter of disassociation. And it is perhaps not surprising, to us, that that letter went no further, in view of that fact that it was prepared in advance of the events of the early morning of 2nd May 1995, and did not take into account the assertion, as the tribunal found, that the men were there and would work normally that day. That letter was issued to the respondents at about 8.30 a.m. on 2nd May, and that date is the date taken as the date of dismissal.

The events that followed after that were regarded by the tribunal as not central and they said they did not make any findings about the events that took place after the men were dismissed and no complaint is made of that in this appeal.

What happened was that later in the day the union officer tried unsuccessfully to persuade Mr Perkins to change his mind about dismissal, and Vauxhall, the Company's biggest customer whose vehicles the appellant company had been delivering on their large transporters, cancelled its contract with the Company and sadly in the result the Company had to close the Luton depot.

In addition to the important finding of fact to which I have referred relating to 2nd May meeting at about 8 a.m., the tribunal made two further findings of fact that have attracted some argument in this appeal. They found that in the circumstances and on all the evidence the refusal of the respondents to sign the disassociation letter did not necessarily mean that they would take part in the particular action referred to in it. The respondents had in fact given a very good reason for refusing, namely the very wide terms of it. I add an aside, that in the experience of this Appeal Tribunal that letter was indeed in very wide terms calling as it did for the disavowal of all industrial action at the Luton depot.

Secondly, although the respondents had met prior to the letter of 20th April to settle the strike day, 1st May, there had been no meeting, so the tribunal found, to work out how, when and to what extent a restriction on overtime or withdrawal of co-operation would be implemented. Nor, the tribunal found, were there any proposals to hold such a meeting. So the tribunal concluded:

"16. ... All the witnesses have indicated that no effect could have been given to that threat until proper plans to do so had been made and we accept that, not only had no such plans been considered, but that at the time of the dismissal there were no proposals in hand to arrange any meeting for planning purposes. The fact is that having held their one day "token" strike on 1 May the Applicants had no idea at the time when they were dismissed how or whether they would actually take any further action. ..."

A little later:

"17. Our view is that the Union letter - the Applicants' "strike notice" - gave notice of two separate stages of industrial action - first, the strike itself which was clearly limited to action only on 1 May, and secondly, overtime restrictions and withdrawal of co-operation which would start on 2 May. Given our finding that no plans had been made on 2 May for implementing that second action, we conclude that the Applicants could not have been taking part in it at or about 8.20 am on 2 May and accordingly that Section 238 (or, in Mr Brown's case Section 237) of the Act do not bar the Applicants' rights to pursue their complaints of unfair dismissal."

One of the points made in this appeal, is that there the tribunal was speculating as to what may or may not follow from the early part of 2nd May as to how the respondents may or may not proceed.

It seems to us that what the tribunal was actually doing were looking to the practical realities of the situation on the morning of 2nd May, the date of dismissal; and I shall have a little more to say about that in a moment.

The appellant submits that the tribunal erred in law and made findings of fact that were perverse. It is said that the finding as to what happened on the morning of 2nd May, the meeting, is not supported by the evidence.

Secondly, it is said that the tribunal's interpretation of the strike notice, that is the letter of 20th April, as involving two part action, would render the provisions of ss.237 and 238 unworkable. No employer would be able to dismiss in such circumstances unless he could prove to a tribunal that to his knowledge all relevant employees had not only voted for the industrial action, but committed themselves to a binding agreement as to the detail of the further continuous industrial action.

The appellant's submission on the law is that there is involved here a question of mixed law and fact. That is not in issue; nor, however, does it detract from the primary responsibility of the Industrial Tribunal to find out what the facts were. Then having found out what the facts were, the tribunal has to apply the law to the facts as they have found them. It is said that the tribunal failed properly to consider the question of whether this was industrial action in the proper context of the legislation and all the circumstances of the case. Counsel for the appellant took us in very considerable detail through the provisions of the Act and the scheme that was introduced in 1992, and subsequently by amendment, for a stage by stage process of ballots and notices and the like, before industrial action takes place. We have that in mind.

It is said that the tribunal took into account irrelevant considerations and asked itself the wrong questions. There is reference to the matters I have mentioned as to the absence of any plan for implementation of action on 2nd May onwards and as to what may or may not have been the state of awareness of the respondents as to how they were going to proceed. It is said that the tribunal misdirected itself in its approach and that it failed to apply a purely objective test.

The tribunal made clear that it directed itself by reference to a passage in the decision of the Employment Appeal Tribunal in Midland Plastics v Till [1983] ICR 118. The tribunal cited a passage from the judgment in that case of Browne-Wilkinson J (as he then was), in these terms:

"Unfortunately a substantial factor in industrial relations negotiations in this country is a display of power by one side in response to which the other side either does or does not yield to the wishes of the person displaying such power. The actual taking of industrial action is the last stage and is quite distinct from the stage at which the threat of it is being used as a negotiating weapon. Throughout the period of a strike notice what is bearing upon the employer is the risk to his business. We can see no distinction between what occurred in this case and the ordinary strike notice. In neither case has the matter matured into taking part in industrial action."

The tribunal then said:

"We take these observations as a guide to our decision on the facts before us."

Criticism was made of the Industrial Tribunal in argument when it was submitted that they wrongly followed Midland Plastics v Till. But we are satisfied that they took from that case only the guidance from the passage that they themselves cited.

How then did they apply it? In their extended reasons they said this:

"For the Company Mr McParland has submitted that the Applicants' actions in this matter must be considered "all of a piece" in that when they went on strike on 1 May they started industrial action which, given in particular the terms of the Union's letter of 20 April to the Company and the refusal of the Applicants to sign the "disassociation letter", is to be taken as continuous and unbroken until all the action specified in that letter was called off and on that reading the Applicants were clearly, on the early morning of 2 May, taking part in "other industrial action", namely the restriction on overtime work and withdrawal of co-operation specified in the letter. For the Applicants Professor Lewis argues, in substance, that there were two distinct heads of industrial action - the one day strike on 1 May and, secondly, the further action short of strike which the 20 April letter indicated would start on 2 May - and that at the time when the Applicants were dismissed the former action had ended and the Applicants could not therefore be taking part in it, and the latter action had not in fact started.

15. ... Mr McParland's submissions are persuasive but we have concluded that we cannot accept them. It is clear that if the Company had dismissed the Applicants at any time before they actually started the strike action on 1 May, they would not have been dismissed at the time they were taking part in that strike action. If they had been dismissed while that strike action was effective (and there is no reason why Mr Perkins could not have effected the dismissal by letter again delivered to each of the Applicants by courier on 1 May) then the provisions of Section 237/238 of the Act would have bitten and the Applicants would not be entitled to proceed. However, he did not take that step and at close of business on 1 May the strike action specified in the Union letter was over and finished: to dismiss them at 8.30 am on 2 May - as the dismissal letter purported to do - for taking part in that strike was "out of time" for the purposes of Section 237/238 of the Act. Those sections could only be effective to protect the Company if at 8.30 am on 2 May the Applicants were participating in the other form of industrial action - restriction on overtime and withdrawal of co-operation - specified in the Union letter. ..."

That is how the tribunal approached it, and it is of course there of considerable importance to note the finding that they had earlier made that the respondents had indicated that on the morning of 2nd May they would work normally.

The written argument before us, expanded by oral argument, makes a number of further points. It criticises a failure to distinguish between a threat of action and the time when it ceases to be a threat and the threatened action has begun. It is submitted that given the ordinary meaning of the letter of 20th April, to which we have referred, and in the absence of any withdrawal or suspension of the stated intention by the respondent, the appellant was entitled to treat the respondents as taking part in industrial action. The Industrial Tribunal was wrong not to look at the absence of any such withdrawal. Those points go to the argument and support the argument that this was one course of continuous action, the argument put forward by Mr McParland to the Industrial Tribunal and rejected by it. The argument for the appellant goes on: that even if the tribunal was right to construe the strike notice of 20th April as threatening two separate or distinct pieces of action, the tribunal was wrong not to find that phase 2 began at the beginning of 2nd May morning shift. It is said that the appellant was under no obligation to wait and see what happened. The appellant was entitled to infer from what had happened and was happening, that the respondents were engaged in industrial action exactly as the strike notice of 20th April had threatened.

Professor Lewis for the respondents makes the clear point that if it is right that the action was in two separate parts, it cannot conceivably be argued that phase 2 had been implemented or implementation of it had begun by 8.30 a.m. of 2nd May.

The argument for the appellant concludes with submissions that the tribunal had wrongly taken into account matters as to how the respondent might have conducted themselves in the future.

We have found some difficulty with this appeal. That is perhaps because we are not certain that we would necessarily have reached on the facts the same decision as that reached by the Industrial Tribunal. But we must remind ourselves that that is not the question for us. Before we can disturb the decision of the Industrial Tribunal we must be satisfied that the tribunal made a material error of law or that its decision is flawed by findings of fact that were not open to it.

Our decision is not in the result a unanimous one.

The minority view is that the tribunal erred in not holding that there was one continuous course of industrial action that began with the strike on 1st May. Thereafter continuous action ran on and was running on on the morning of 2nd May so that the employees were dismissed at a time when they were taking part in industrial action, and accordingly the conclusion of the Industrial Tribunal was in error.

The majority view is that the core of this case is the tribunal's finding as to what occurred at the meeting at about 8 a.m. on 2nd May. It is argued for the appellant that the letter of 20th April referred to as the "strike notice", can only properly be construed as a notice of continuous action. It should not be read as a notice of two stage action. With the strike on 1st May, the period of threat of action had ended, the continuous action had begun. S.237 applied to any dismissal from thereon until such time as the union withdrew the threat. That says, the appellant, is regardless of what actually happened. Regardless of whether in fact actual overtime restriction or withdrawal of co-operation took place, regardless of the duration of the period of normal working, the action continued on the appellant's argument unless and until the threat of it was withdrawn or the contemplation of it was discontinued.

The Industrial Tribunal did not adopt that approach. It found as a fact that at 8.30 a.m. on 2nd May the respondent were not saying that they would not work normally. Were it left there, it may be that the negative may well not counter the effect of the letter of 20th April. But the tribunal having identified the issues on the evidence between the appellant and respondents, to which I have referred, then said that it accepted the respondents' evidence which was that the men would work normally.

We have been taken through in detail the written witness statements used as evidence-in-chief, and the Chairman's Notes of Evidence which are not always however very clear or very full. It is extremely difficult to even attempt to discover from Notes of Evidence exactly what was said or, importantly, how it was said. But it is clear that the issue of normal working was canvassed in oral evidence in some detail, and that there was some evidence that Mr Clark and Mr Spowage said to the tribunal that they had told Mr Perkins that the men would work normally.

The tribunal had all the evidence which we do not. Despite the full and careful arguments we have heard, we find ourselves unable to hold that the tribunal reached a decision about 2nd May conversation that was not open to it.

At this stage of the case, being argued as it is more than two years later, and being argued on the papers alone here in London, we are very far removed from the gates of the Luton depot. The Industrial Tribunal was nearer both in time and place and had the inestimable advantage of hearing and seeing the people at the centre of the events.

Whatever the construction of the strike notice, which as I have said can be and indeed has been argued extensively, the core facts of this case are that the Company did not in fact dismiss on 1st May 1995 when the respondents were on strike. Before acting against the respondents on 2nd May 1995, the appellant company enquired of the respondents as to normal working, and as to the signing of the letter of disassociation. Accordingly, and it may be that it was because the appellant wanted the respondents to return to work, but however that may be, the appellant itself in fact treated 2nd May 1995 as separate from 1st May 1995, and on the Industrial Tribunal's finding the appellant company received assurance as to normal working that day. That is the matter that goes to ss.237 and 238. The refusal to sign the letter of disassociation that day does not seem to us to go to those sections in the same immediate and direct way. There was an assurance of normal working which is what was to happen on that day.

Can we hold that the tribunal reached a decision about 20th April letter that was not open to them? Can we hold that in those circumstances it could be seen as foreshadowing industrial action in two separate categories? We are not sure that we can be satisfied of that. But if we are wrong on that aspect, it is necessary, nonetheless, to move on to see what actually happened on the ground. The fact is that on the morning of 2nd May the appellant company did not in fact rely upon the action foreshadowed for that day. They asked for and got an assurance of normal working that morning. And, it is to be noted, that in the oral evidence Mr Perkins said that as to what might happen that day he was relying purely on his own speculation.

Accordingly, it cannot be said that at the time of the decision to dismiss, the employees were engaged in industrial action, and so the majority of this Appeal Tribunal has felt unable to be satisfied of an error of law by the Industrial Tribunal or a perversity of finding of fact about it. The decision of the tribunal was theirs, and we do not feel, by a majority, that we can properly interfere with it. Accordingly this appeal will be dismissed.

I would just like to stress that although Mr McParland in opening this appeal sought to emphasise to us that the case involved matters of very great importance in the law as to the meaning and application of ss.237 and 238, we have taken the clear view that this is a case that turns and is decided upon its own facts and its own considerations in the way that we have outlined.

The appeal will accordingly be dismissed.

Leave to appeal on behalf of the appellant refused.