United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	ANTHONY SENDALL (of Counsel) Messrs Eversheds Solicitors 10 Newhall Street Birmingham B3 3LX


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether or not there is an arguable appeal against an unanimous decision of an Industrial Tribunal which was held at Nottingham and which decision was entered in the Register on 7th April 1997. By that decision the Industrial Tribunal unanimously upheld the complaint of the two applicants that they were unfairly dismissed because they had taken part or proposed to take part in the activities of an independent trade union at an appropriate time. The question of remedy was deferred for another date. The essence of the factual basis for the tribunal's decision is, in our judgment, very clearly set out in a well-structured written decision.

The Employers were saying that the reason for the applicant's dismissal was the unquestioned redundancy situation at the place where the applicants were employed. They called two witnesses, Mr Gordon Browning - Managing Director of the relevant ductile section, and a Mr Jervis - who was operations manager as from February 1995.

The Industrial Tribunal noted or observed that there was some direct evidence of anti-trade union feeling, or rather, anti these two particular senior trade union officials by Mr Jervis - paragraph 9 of their decision. They noted that very shortly before the dismissals, in the context of a negotiation of a pay increase, there had been trade union activity and a ballot in favour of industrial action was held - paragraph 13 of the decision.

The tribunal noted in paragraph 14 that there was a surprising lack of documentation evidencing, as one would have expected, careful consideration of the redundancy issues and how they were to be handled. They also noted that the decisions which were taken by the managing director, Mr Browning, were based on advice that Mr Jervis gave to him on operational matters. It was Mr Jervis' view that once a decision was taken to close the ancillary department in which the two applicants were employed, it would not be necessary to pool its five workers with those who were surplus to requirements in other departments in order to retain the skill level the Employers needed. The tribunal noted that there were trainees working along side certain machine operators who were paid at about the same hourly rate as the applicants, but all had substantially less service than the applicants, and the tribunal say this:

"14. ... Indeed, had the respondent substituted ancillary workers for trainees, the redundancy costs would have been substantially lower."

It was common ground between the parties, both of whom were represented by Counsel at the Industrial Tribunal hearing, that there had been no proper consultation on pooling and selection criteria with the recognised trade union. They noted that, with some surprise, bearing in mind the size and administrative resources of the Employers, and also bearing in mind the sensitivities that were involved in two senior trades union officers being dismissed by reason of redundancy. They noted that the Employers did not enable these two applicants to work out their period of notice. They were not given the option of doing that.

The tribunal also noted that in an endeavour to settle a feeling of unrest in the works, Mr Browning refused to defer the redundancies whilst discussions could take place - paragraph 19 of the decision.

There was no appeal open to the applicants against the decision to dismiss - paragraph 23 of the decision.

On those facts the tribunal then made their findings in paragraph 24:

"24. On those facts we make the following findings. Whatever Mr Jervis' earlier sympathies with trade unionism, by 1995 he was determined to sideline the union in matters of collective bargaining. When challenged by Mr Magee, Mr Jervis contemplated ways of getting rid of both Mr Magee and Mr Bodley, either by the disciplinary route or, in the case of Mr Magee, by promoting him. When the need to make redundancies was identified, the respondent at the same time faced a ballot for industrial action. If that ballot was successful, the applicants would lead such industrial action. They had been active, even confrontational, in the past. The respondent had ample motive for finding a pretext upon which to dismiss the applicants. The opportunity came when the methods of selection were considered. Although there was a good case for pooling ancillary department workers with others, it was rejected. There was no consultation with the union before the applicants were told that they were at risk. Redundancy costs could have been saved had the respondent acceded to suggestions made by the union. At all times the respondent set its face against pooling the ancillary workers. In our judgment the respondent's conduct, judged as a whole, and the background against which these applicants were dismissed leads us to infer that the real reason for their dismissal was that they had taken part and proposed to take part in trade union activities at an appropriate time. The redundancy situation formed the background and the means by which they were dismissed. For the respondent was able to dismiss them by the simple expedient of not only closing the ancillary department, for which there was a genuine business need, but also dismissing all the workers in it in order to get rid of the applicants."

Accordingly the question at issue before the Industrial Tribunal had been 'what was the true reason for the dismissal of these individuals'. The tribunal set about resolving that issue.

In an admirable and succinct skeleton argument supported by oral argument, Mr Sendall on behalf of the employers, contends that the Industrial Tribunal have effectively erred in law in two respects. Firstly, by taking an over general approach to the evidence, not distinguishing between the activities of Mr Jervis against whom there was some direct evidence of anti-union feeling, and the activities of Mr Browning his superior who may have been responsible for taking decisions. Secondly, that there has been an inadequate analysis in detail of the evidence. It seems to us that neither of those two criticisms has any merit.

Firstly, tribunals up and down the country, probably on a daily basis, are having to determine the question as to the reason why somebody has been dismissed. That is, if one will, the meat and drink of the industrial jury, and is something which they are well equipped to do and experienced in doing. Accordingly we start our examination of these submissions with that well in mind.

Secondly, its seems to us that it is unfair to suggest that the tribunal have not conducted a critical analysis of the evidence which they received. It seems to us that the answer to that criticism lies in the detailed decision itself.

Third, it seems to us that the tribunal have not and could not arguably be said to have failed to distinguish between the activities of Mr Browning and Mr Jervis. In paragraph 14 they note that the Managing Director looked to Mr Jervis for advice on operational matters. In relation to the pooling decision which was crucial to the ultimate dismissal of these two applicants, it appears that Mr Jervis' view was that it was not necessary to pool its five workers with those in other departments in order to retain the skill levels the employers needed. That advice appears to have been accepted by Mr Browning. Accordingly, on that evidence, it was open to the Industrial Tribunal to have concluded, that the real reason for the dismissal was that they had been engaged in trade union activities at an appropriate time. There was certainly a motive, as the tribunal noted, for that view.

We are of the view that the tribunal decision is manifestly sound on its face, and although the general allegation of perversity has been made, despite the abilities of the argument which has been presented to us by Mr Sendall, it seems to us that there is no merit in the prospective appeal which must therefore be dismissed.