United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	CLIVE SHELDON (Of Counsel) Instructed by Messrs Bindman & Partners Solicitors 275 Gray's Inn Road London WC1X 8QB
For the Respondent	MS I OMAMBALA (Of Counsel) Instructed by Greater London UNISON 1st Floor Congress House Great Russell Street London WC1B 3LS


 


JUDGE REID QC

1. This is an Appeal from a decision of an Employment Tribunal held at London Central on 18 September. The hearing on that occasion had been limited to consideration of a preliminary issue in these terms:

"Whether having regards to the provision of section 161(3) of the Trade Union and Labour Relations (Consolidation) 1992. ('The Act"), the Tribunal has jurisdiction to consider the Applicant's claim for interim relief."

The decision was that the Tribunal had jurisdiction to consider the Applicant's application for interim relief. The Local Authority Appellant appeals against that decision.

2. The circumstances in which it arises are these: Mr Maharaj, the Respondent here, the Applicant below, was employed by the Local Authority for a number of years until July 2000. He was then dismissed and he put in an Application on 7 July to the Employment Tribunal which included the following passage:

"I believe that my role as a UNISON Rep was a reason for my dismissal. In addition I had been challenged about my ability to take reasonable time off to undertake my duties. This was earlier this year."

3. He then applied for interim relief pursuant to section 161 of that Act and the application was supported by a document in these terms dated 7 July:

" TO WHOM IT MAY CONCERN

I write to confirm that Mr SACHA MAHARAJ is the UNISON Camden Branch Equal Opportunities Officer and shop steward. He is also the Convenor of the Camden Black Workers Group funded by UNISON.

This Certificate is issued in accordance with Section 161(3) of the TULRA 1992."

It bears the signature E A COULSON

UNISON REGIONAL OFFICER

4. The legal background is that by section 152 of the Act, dismissal of an employee should be regarded as unfair if the reason for it or, if more than one, the principal reason was the employee:

(a) was or proposed to become a member of an independent trade union or

(b) had taken part or proposed to take part in the activities of an independent trade union at an appropriate time, (and I can leave it there).

By section 161

(1) an employee who presents complaint for unfair dismissal alleging the dismissal is unfair by virtue of section 152 may apply to the Tribunal for interim relief;

(2) the Tribunal should not entertain an Application for interim relief unless it is presented to the Tribunal before the end of the period of 7 days following the effective date of termination whether before, on or after that date;

(3) in a case where the employee relies on section 152(1) (a) or (b) (which I have already read), the Tribunal shall not entertain an application for interim relief unless before the end of that period he has also so presented a certificate in writing, signed by an authorised official of the independent trade union of which the employee was or proposed to become a member, stating:

(a) that on the date of the dismissal the employee was or proposed to become a member of the union and

(b) that there appear to be reasonable grounds for supposing the reasons for his dismissal or, if more than one, the principal reason was one alleged in the complaint.

5. Before the Employment Tribunal, the Council took 2 points on the documents provided, the IT1 from which I quoted 1 paragraph, and the document from Mr Coulson. Those 2 points were first that the supposed Certificate does not state that the Applicant was on the date of dismissal a member of the trade union or proposed to become one and second that the supposed Certificate does not state that there are reasonable grounds for supposing that the reason for his dismissal or, if more than one, the principal reason was the one alleged in the complaint. The first of those points, not surprisingly, has not been persisted in on this Appeal. So far as the second of those points is concerned, the Tribunal dealt with it in this way in paragraph 10 sub paragraph 2 of the Extended Reasons:

"As to paragraph B that the certificate did not state that there appear to be reasonable grounds for supposing a reason for his dismissal (or if more than 1 the principal one) was the one alleged in the complaint. However, as stated above we are required not to adopt too technical approach to the construction of a sub section and to consider whether its provisions have been substantially complied with and we note that we may link documents together when undertaking that consideration. Here the fact that the IT1 the certificate was drafted by the same person and presented to the Tribunal by him together on the same day, leads us to the conclusion that section 161(3) has been substantially complied with. We are satisfied that we can reasonably make this decision without doing injustice to the other side.

We therefore hold that theseTribunals have jurisdiction to grant interim relief to the Applicant."

6. That decision is attacked by the Appellant's Counsel in this way. It is accepted that it is possible to read the documents together and that the Tribunal was not required simply to look at the document signed by Mr Coulson in isolation. It was accepted that it could be read with the IT1.It was then said that it was accepted that this was a field in which "technicality should be avoided as far as possible and that detailed compliance with the provisions of the section was not necessary provided that there is substantial compliance with them". That was a quote taken from Stone v Charrington & Co. But it was said even when one does take those documents together it cannot be said that there is anything like a certificate as required by section 161 stating that the giver of a certificate, ie an authorised official of the independent trade union of which the employee was or was proposed to become a member, considered there appeared to be reasonable ground for supposing the reasons for his dismissal or, if more than one, the principal reason was one alleged in the complaint. And it was said that that was fatal to the claim that the document provided by Mr Coulson, when read with the IT1, comprised valid certificate.
7. The locus classicus in relation to the construction of Section 161, as it now is, (it went through, I think, 2 previous versions) is in our view the decision of the Employment Appeal Tribunal in Bradley v Edward Ryde & Sons over which Slynn J, as he then was, presided. At page 490, letter B in the report which is to be found in [1979] ICR at page 488 Slynn J said:

"It is also clear it seems to us that the precondition of the jurisdication of the tribunal include the filter which is provided by a certificate signed by an authorised official of a trade union. Parliament intended that applications of this kind for interim relief should not be entertained unless an official of an independent trade union had looked into the matter and had formed the view that there appeared to be reasonable grounds for supposing that the reasons for an employee's dismissal was the one which he alleged in the complaint. The provisions of the certificate which is required to satisfy the test are laid down quite simply and clearly in that section. Unless the certificate is given, clearly the tribunal has no jurisdiction."

And further on at page 491 letter D he said

"It is important that when this filter has been provided by Parliament that it should be properly dealt with. It is important that the tribunal should be satisfied that a union official really has formed the view that there appear to be reasonable grounds for supposing that the reason for the dismissal was the one alleged in the complaint."

8. I should add a gloss to that, by saying that the Tribunal has to be satisfied by the terms of the certificate, and when I say the certificate I refer to the document purporting to be the certificate itself, when read together with such other documents as it is permissible to read with that certificate. In this instance the IT1 in our judgment can be read with the document from Mr Coulson in just the same way as documents could be read together in, for example, the case of Barley v Amey Roadstone [1976] ICR 546.
9. When we look at the document in this case, we look at it broadly and without technicality as we are required to do by the authorities, in particular by the Bradley case, and we look to see whether we can find anywhere an indication that the trade union official involved has certified that there appear to be reasonable grounds for supposing that the reason for the dismissal was one alleged in the complaint. In the Bradley case the Tribunal took the view there was just sufficiently an application in proper form but in that case there was a document in these terms

"Trade Union Certificate section 78 Employment Protection Act Paragraph 2b. "As a duly authorised official of an independent trade union I wish to raise a complaint under section 78 of the Employment Protection Act 1975. In that I consider a Transport & General Workers' Union member, namely Mr William Bradley of 13 Queen Street, Ironville, has, in my opinion, been unfairly dismissed and that the principal reason for his dismissal was an inadmissible reason in respect that he was or had proposed to become a member of our union and had taken or proposed to take part at an appropriate time in the activities of our trade union of which he is a member. I enclose a copy of certificate under section 8(5)(c) in authorisation under section 8 of the Employment Protection Act 1975."

10. The suggestion on that occasion was that there was no indication that the officer giving that certificate believed there to be reasonable grounds for supposing the dismissal was on those grounds. But that was dealt with at page 492 between letters F and H:

"Although we see the force of her argument that merely to say "in my opinion" or " I consider" does not necessarily involve a statement that there appear to be reasonable grounds, it seems that in this case the union official who has given the certificate is really saying that he reasonably considers that there are grounds for believing that the employee has been dismissed for one of the reasons specified in section 77. The truth is that he does not refer to the reason alleged in the complaint, but it seems that what he is doing in the letter of November 6 , which is dated the same day as the application to the tribunal, is really to link it with the application form; and we consider that if one reads the two documents together he is sufficiently stating that in his opinion the reason for the dismissal is the one alleged in the complaint which falls within the meaning of section 77(1) of the Act. We consider that reading the letter fairly, the right construction is, when he talks about "his opinion" and the fact that "he considers," it means that he is really saying that he has come to the conclusion that there are reasonable grounds for the view which he states."

11. That as I say, was the case where the certificate was said to be just sufficient for an application in proper form. In the present case regrettably, there is nothing like as much for the Tribunal to go on. The nearest one gets to it is the assertion in the IT1 which is Mr Maharaj's assertion though written by Mr Coulson's hand

"I believe that my role as a UNISON Rep was a reason for my dismissal. In addition I had been challenged about my ability to take reasonable time off to undertake my duties. This was earlier this year."

The IT1 incidentally appears to be unsigned.

12. There is no assertion anywhere, either directly or by inference that Mr Coulson has considered the matter independently and that he has formed any view about the matter whatsoever. The purpose of section 161, is as has been said in the authorities, to provide a filter in the form of a certificate showing that an official of an independent trade union has considered the issue and considers there appear to be reasonable grounds. The documentation in this case comes nowhere near that.
13. So far as the decision of the Employment Tribunal is concerned it was urged that they were acting within their discretion and that when one looked at paragraph 10 (2) of their reasoning, there was no error of law in it. It was therefore submitted that we could not and should not interfere with the decision at which they had arrived. We are unable to accept that view.
14. This is not a matter of the exercise for discretion. The Tribunal had to first of all determine as a matter of construction what documents could be read together to comprise the certificate and then having determine that, had to decide as a matter of the construction of those documents, whether or not they comprised, as a matter of law, a valid certificate, that is to say, a certificate containing a statement by the appropriate trade union official that there appear to be reasonable grounds for supposing and so forth.
15. In our judgment the Tribunal was in error in their conclusion. We take the view that there is a lacuna in the reasoning in paragraph 10(2). It starts from the proposition that one should not adopt too technical approach and one should consider whether the provisions had been substantially complied with. Next it says the documents could be linked together. It goes on to rely on the fact the IT1 and the certificate were drafted by the same person and presented to the Tribunal together on the same day. Then it leaps to the conclusion that section 161 (3) had been substantially complied with.
16. In our judgment, what went wrong was that the Tribunal, having determined that the documents could be looked at together, then failed to go back and look to see whether when one did look them together one could say that there was a certificate from the appropriate trade union official stating that there appear to be reasonable grounds for supposing and so forth. That vital step in the reasoning appears to have got lost and hence the Tribunal led themselves into error. It follows that notwithstanding the admirable argument that Ms Omambala advanced on behalf of Mr  Maharaj we take the view that the Tribunal were wrong and that their decision must be reversed. In consequence, in place of the declaration that the Tribunal made that they had jurisdiction to consider the Applicant's application for interim relief, we will declare that the Tribunal did not have jurisdiction to consider the Applicant's application for interim relief because no proper certificate had been supplied in accordance with the Act. The appeal will therefore be allowed.