United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J WAITHE (of Counsel) Messrs Tramboo & Partnership Solicitors 168a High Street Hounslow Middlesex TW3 1BQ


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law raised in an appeal which the employers wish to make against a decision of an Industrial Tribunal held at London (South) on 3rd and 4th February 1998 and 5th March 1998. The unanimous decision of the Industrial Tribunal was that the applicant was unfairly dismissed and victimised on trade union grounds contrary to s. 146 of the 1992 Act, and they made a declaration of discrimination under s. 146(1)(a) in respect of which they made an award of £2,000 for victimisation. They rejected his claim for unpaid commission, but made an award for unfair dismissal in the sum of £14,387, making a total compensatory award of £16,387.

The facts we can take from the Industrial Tribunal's decision. The applicant had been employed by the respondent company and its predecessors, for a total period of some 30 years. He had for many years been the manager of a shoe shop and held that position at the date of his dismissal. As manager of course he had control over the day to day running of the business and its staffing.

After the company had been acquired, or its businesses acquired, by a Mr Virk and his family, there was a dispute between the parties as to the entitlement of the applicant for payment of monies due. It was not just the applicant who was claiming monies due, it was also a number of fellow employees.

So he took his case to the Industrial Tribunal and succeeded. He did so having sought the advice of his union, although the applicant was a member of the union, he was not an authorised trade union representative. On the advice of the trade union the applicant assisted his fellow employees to make application themselves for underpayment of wages and as a friend represented one fellow employee at a tribunal hearing on 5th September 1997 which gave rise to the dispute between the parties.

In July 1997 Mr Virk communicated with the applicant effectively, according to the tribunal, depriving him of all authority to act as a manager. What Mr Virk was saying was that the applicant effectively had to put all communications into writing. The excuse for that was that Mr Virk's English was not good, but the tribunal questioned the veracity of that evidence. There was a letter from Mr Virk on that date, 8th July, when the tribunal concluded that it was a restriction on the discretion which the applicant had to allow his staff to choose their holiday dates. Mr Virk thought that he was also giving him a specific instruction that he could not exercise his discretion in relation to which days off particular people, including himself, would have from the shop.

The date for hearing of Ms O'Keefe's complaint in the Ashford Industrial Tribunal was set for 5th September 1997, and she had arranged for the applicant to represent her and he therefore needed his day off for that day. He asked Mr Virk whether he could change his normal day off to 5th September. Mr Virk had never before disputed such a change nor required it to be notified in writing and evidence of that was given before the Industrial Tribunal. However, two days before the hearing was due to take place, Mr Virk telephoned the applicant and said he was not to take the day off on 5th September because Mr Virk wanted to make a delivery to the shop that day and required the applicant, as manager, to be on site to accept the delivery. The applicant did not attend the shop that day, but took 5th September off as his day off because he wished to fulfil his commitment to a fellow employee to represent her at the Industrial Tribunal. Whereupon he was suspended from his duties. The letter suspending him indicated that he had broken the instruction that he was to present on 5th September, and also alleged that the applicant had undertaken a malign campaign against the respondent by nominating himself as legal representative of two fellow employees who were taking Industrial Tribunal proceedings against the respondent. He was asked to give an explanation in writing for his conduct and in the light of that letter was required to attend a disciplinary hearing on 18th September.

On 18th September Mr Virk who had made the allegations against the applicant chaired the disciplinary hearing himself. In order to attend it the applicant had to cancel the annual leave which he had organised. It was not until 25th September, following a letter from the applicant, that the applicant was informed by Mr Virk that he was summarily dismissed from his employment. He formally had a right of appeal which the applicant did not exercise, because he was of the view that it would not make any difference to the outcome of his case.

The tribunal noted in paragraph 7 of their decision that:

"The reason given by the Respondent for the dismissal was firstly that the Applicant proceeded on unauthorised leave of absence on 5 September 1997 thereby committing (a) deliberate act of insubordination; and secondly that the Applicant had been involved in instigating a malign campaign against the Respondent which was a breach of mutual trust and confidence."

The tribunal found as a fact from the evidence presented to it that:

"8. ... the relationship between the Applicant and Mr Virk had been workable, if not amicable, until such time as the Applicant succeeded in his Tribunal action to recover unpaid commission."

The tribunal found that almost immediately thereafter Mr Virk issued the letter of 8th July to which we have referred. The tribunal went on:

"8. ... Although the Applicant had notified Mr Virk of his intention to change his day off on 5 September 1997, Mr Virk later orally withdrew his consent to that arrangement and the Applicant was wrong to proceed to take the day off in the face of an instruction from his manager to the contrary.

9. However, this breach by the Applicant represented a first breach of discipline in an otherwise unblemished work record. The Tribunal finds that Mr Virk had made up his mind prior to the disciplinary hearing to dismiss the Applicant. ... Further, the Tribunal finds from the evidence ... that it was clear that Ms MacDonald's conduct of the management functions in the shop indicated that she was there on a permanent basis and not merely covering for an employee who was absent on holiday."

Therefore, we interpolate, the tribunal was satisfied that this was a case where the decision to dismiss had been taken before the disciplinary hearing had been conducted. Having considered the evidence the tribunal concluded that the sanction of dismissal for an employee who is guilty of a first breach of conduct is harsh and in these circumstances unjustifiable. They went on to say that they could find no evidence to support the supposed 'malign campaign' against the respondent which was given as the second reason for the dismissal.

Earlier on in their judgment the Industrial Tribunal had indicated that they found the evidence given on behalf of the respondent both by Mr Virk and a witness, Miss MacDonald, to be unreliable and not to be given credence when it conflicted with the evidence given by the applicant.

It seems to us that the tribunal therefore were faced with this position that the employers had put forward reasons for the dismissal which were frankly incredible. No reasonable employer could have regarded the breach of conduct, that is absenting himself when asked not to do so, as grounds for a dismissal, and unless the lawyers were acting wholly irrationally, that cannot have been the true reason for the dismissal. Similarly, they said that there was no evidence to support the supposed 'malign campaign' and therefore that could not have been the reason for the dismissal either. They then had to apply their minds as to whether there had been another reason for the dismissal, and the conclusion that they arrived at was that indeed there was, and that was because he was a member of a trade union and had pursued his rights as a trade union member and taken the employers to court over outstanding monies and had encouraged other employees to do the same thing.

To dismiss somebody or to take action short of dismissal against somebody because by reason of them being a member of a trade union is unlawful and leads to certain consequences. The tribunal found that his dismissal was directly connected with his union membership and the fact that he had consulted the union for advice and help. In those circumstances, the tribunal made the award to which we have referred.

In an admirably succinct argument, Mr Waithe of counsel, on behalf of the appellant, has sought to argue that the decision of the Industrial Tribunal as to the reason for the dismissal was not one which was open to them on the evidence. Effectively what he is submitting is that having rejected the reason for the dismissal which was advanced by the employers and the reason why they treated him as they did, it was jumping too much of a hurdle to go on and conclude that the reason why the action was taken was by reason of his trade union membership. It was asserted in paragraph 7 and 8 of the skeleton argument that there was no evidence to show that union membership was a reason for dismissal, and that the question which had to be answered was: was the respondent's union membership a reason for his dismissal? It was submitted to us that the respondent's dismissal was due to his blunt refusal to carry out the appellant's lawful act which refusal was repeated at the disciplinary hearing in September, and that there was no evidence to show that the appellant had ever interfered with the respondent's right or membership of his union.

Whilst we can understand the force of that submission, it does seem to us that on the facts of this particular case, which were essentially before the Industrial Tribunal, the industrial jury was entitled to conclude that the purpose and reason for which action had been taken against this employee was by reason of his union membership. We think that we can add that other tribunals might have taken a different view as to whether they could make the leap to which Mr Waithe has referred to in argument, but this tribunal was entitled on the material before it to reach the conclusion which it did.

That being the case, it seems to us that this is an appeal which does not have reasonable prospect of success. There is no arguable point of law and accordingly, in accordance with our procedure, we shall dismiss it as this stage. But in doing so, we would like to repeat that the succinct arguments with which we were presented were admirably prepared and presented to us and we wish that we could say that of all such submission which we have in this court.