United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SEAN JONES (of Counsel) Instructed By: Messrs Dent Raven & Marsdens Solicitors Alliance House 30 Cross Street Manchester M2 7AQ
For the Respondent	MR CHRISTOPHER JEANS QC (One of Her Majesty's Counsel) and RICHARD LEIPER (of Counsel) Instructed By: Ms D Fitzpatrick Legal Officer International Transport Workers Federation ITF House 49-60 Borough Road London SE1 1DS


 


MR JUSTICE CHARLES:

1. We have before us an appeal from a decision of an Employment Tribunal sitting at London South which was sent to the parties on 23 August 1999. The Employment Tribunal dismissed the claim made by the Appellant for unfair dismissal. The Appellant had alleged that he was dismissed because he had taken part or proposed to take part in the activities of an independent trade union and that dismissal was automatically unfair.
2. The Appellant, Mr Lloyd, was employed for four months on a ship called the Global Mariner which is a vessel run by the International Transport Workers Federation through the Respondent company, ITF. Its purpose was to present an international touring exhibition against Flags of Convenience ships.
3. Mr Lloyd was engaged as Second Cook and all of the crew were expected to assist with the exhibition when the ship was in port. The additional duties were contained in and recognised by a Collective Agreement. Mr Lloyd, the Applicant, was on board for two months. He was then given three months' notice which also accorded with the Collective Agreement and the terms of his contract of employment. Given that he had such a short period of continuous employment, as was recognised by the Employment Tribunal and is common ground before us, it was for the Applicant to establish that the reason for his dismissal was within section 152 of the Trade Union Labour Relations & Consolidation Act 1992.
4. The Employment Tribunal in their Extended Reasons go into the history of the matter and they conclude that the reason for the dismissal did not fall within that section. The overall nature of this appeal is shown by paragraph 3 of the Appellant's skeleton argument in which it is asserted that in relation to a number of critical findings of fact the Employment Tribunal either failed to take into account relevant matters and/or made findings which were not open to a reasonable Employment Tribunal properly instructing itself in law. Another line of attack in respect of the Appellant's first point, which I shall come to, was that there was no evidence upon which the Employment Tribunal could reach its conclusions. That very properly recognises that the appeal is against a finding of fact, albeit a finding of fact that can be described as "a secondary finding" because it is not a finding, for example, as to who said what to whom on a particular occasion but arises from, on the Appellant's case, matters of inference and therefore can be said to require an explanation in the Extended Reasons.
5. The approach before the Employment Tribunal is that the relevant decision-maker, or the persons whose mind sets the reason for the termination of the Applicant's employment, was the Captain of the ship, Master Enever. He was not the person on behalf of the Respondents who actually gave the notice of termination to, or caused it to be given to, the Applicant. But we accept that if his motivation had been that he recommended the dismissal because of the Applicant's union activities, that would have got the Applicant home.
6. An oddity in this case is the description that the Employment Tribunal give of Master Enever as a witness. This is contained in paragraph 36 of their Extended Reasons, where they say:

"Master Enever is a man of quick temper, and that was evident in the course of his testimony. We regret to say that we did not find his evidence reliable. On a number of occasions, he was unable to answer straightforward factual questions. He was evasive. He was inconsistent in his answers. In our judgment, the proper inference to draw from this view of his evidence is that it should be put to one side, save insofar as it is evidence in itself of an ability on his part to be unfair and irrational."

7. A general point put to us, which we accept, is that when an Employment Tribunal is seeking to ascertain the reason for a particular action of an employer, whether it be related for example to a discrimination claim or, as in this case, whether the reason relates to trade union activities, if the reasons advanced by the relevant decision-maker are ones which are discounted, or not accepted, that can well lead to an inference that the real reason or the true reason was the one being advanced by the Applicant in the case. However, that is not the conclusion that this Employment Tribunal reached. They go a stage further than that and essentially, as we read their Extended Reasons, find that it was a conglomerate of reasons which were motivating Master Enever who they found was a man who was irrational and unfair. Therefore if this Applicant had been employed for the relevant period of time, it seems he would have had a cast iron case in unfair dismissal. But that was not the issue. The issue (as the case was put) was what the principal reason motivating Master Enever.
8. I now turn to the specific points of appeal that are raised in the amended Notice of Appeal and I shall take them in the order they were put and argued before us.
9. The first related to the Employment Tribunal's finding that the Appellant's role at the meeting of 11 August 1998 was limited to taking and reading back the minutes of the meeting. This is attacked on two grounds, first that there was no evidence upon which that finding could be reached. Second, if we are against the Appellant on that, that the finding is perverse in the sense that it falls outside the range of findings of fact that this Employment Tribunal could reach when properly directing themselves. The finding is in paragraph 15 of the Extended Reasons and that paragraph is in the following terms:

"Mr Potter chaired the meeting. The crew elected the Applicant to take the minutes. A motion was passed that if problems were not solved, they would have a ballot on industrial action, in a proper closed meeting. The role of Mr Lloyd [the Applicant] was simply that he read back the minutes before the vote was taken. He later gave his notes to Mr Potter. Mr Potter returned them to him."

What Mr Lloyd said in his statement (and it is paragraph 20 of that statement) is as follows:

"After the minutes had been read out I asked the crew if they wanted to take industrial action. In response, it was suggested by Mick Gallagher, a fellow safety representative, that the captain be given 5 days to sort the problems out before a strike was called. Those present voted in favour of this. The vote was unanimous. After the meeting I handed the minutes to the convenor, Fred Potter. Usual practice would have required Mr Potter to notify the master of the outcome of the meeting so he could notify the company."

10. During his submissions on behalf of the Applicant Counsel also took us to other statements, namely those of Mr Norman, Mr Jenkins, Mr Gallagher and Mr Potter, from which he sought to build a submission that the only evidence before the Employment Tribunal as to the extent of Mr Lloyd's participation in the meeting favoured the Applicant's assertion that his role (to use the words of the Employment Tribunal) went further than taking the minutes and reading back the minutes and that it was he who suggested or, as it was put to us, "proposed" the motion which resulted in the resolution that was passed.
11. Pausing for a moment, I know that paragraph 15 makes a finding that the crew elected the Applicant actually to take the minutes as well as identifying his role as reading them back.
12. Before the Tribunal, and before us, is a document that has been described as, a petition. It is a document expressing the views of the Bosun, Fred Potter, which is signed by him and a number of other people who were present at the meeting. Mr Norman who was present did not sign it and, as was pointed out to us, he gave evidence in his statement supporting the Applicant's assertion that he was the person who suggested the resolution that was passed. Paragraph 3 of that petition is in the following terms:

"The discussions that followed were lively and most members contributed to the matters under scrutiny. I cannot in honesty say that Mr Lloyd's contribution was any greater than anyone else was. Following the meeting I met the Master, Chief Officer and Tony McGregor, the ITF Campaigner, and made them aware of the situation. I made it clear to them that if the matters discussed were not rectified within, I think, a ten-day time scale, we would be considering some form of industrial action."

It was pointed out to us that that paragraph is in conflict with paragraph 5 of Mr Potter's statement. This paragraph was corrected in his oral evidence in chief but there still remains some conflict between that evidence in chief and that passage from the petition.

13. To our minds on a fair reading of paragraph 3 of the petition, together with a fair reading of the conclusion of the Employment Tribunal as to the extent of Mr Lloyd's role and thus distinct participation in the meeting (if I can so describe it), is that paragraph 3 of the petition provides evidence upon which the Employment Tribunal could reach their conclusion.
14. It was argued before us that it did not because that passage does not specifically address the issue as to whether or not it was the Applicant who made the suggestion or proposal. It seems to us that that is far too limited an approach to take to this evidence. What this petition can be taken as evidence for is a description of the distinctive role or participation taken by the Applicant in the meeting and evidence therefore to support the conclusion that the distinctive role he took was one of minute-taker and of reading back the minutes and not of the person who proposed suggested or was a real catalyst for the resolution that was passed in distinction to anybody else at the meeting who took part in the discussions at it. It therefore seems to us that the argument, although skilfully developed from the statements, that there was no evidence upon which the Employment Tribunal could reach this conclusion fails.
15. The second point is whether or not the finding is perverse.
16. In our judgment this finding falls well short of the tests required for perversity which, if my recollection serves me correctly, were gathered together in a judgment of Mr Justice Mummery when he was President of this Tribunal. Expressions of the test include: "Oh my goodness it must be wrong".
17. I therefore turn to the second ground of appeal which relates to the Employment Tribunal's finding that Master Enever was unaware of the Appellant's particular role at the meeting of 11 August 1998.
18. I pause here to comment that in our judgment correctly it was accepted by Counsel for the Appellant that unless he succeeded on this ground success on the first ground, which we have in fact rejected, would avail him nothing.
19. The most relevant finding in respect of this ground is contained in paragraph 16 of the Extended Reasons which is in the following terms:

"Following the meeting, Mr Potter met the Master and the First Officer. He relayed to the Master what had been said at the meeting and indicated that if no appropriate response was given by the time the vessel reached Oslo, they would consider what action should be taken. We find that he did not tell the Master who the minute taker was, and he did not consider it as relevant. We have made this finding, accepting and relying upon the evidence of Mr Potter. It was suggested on behalf of the Applicant that Mr Potter was not a reliable witness, and was biased in favour of the Respondents, and the Master. We reject that suggestion."

The Appellant, through Counsel, accepts that he is bound by that insofar as it relates to the findings concerning what Mr Potter told the Master.

20. I pause to note that there is a considerable similarity between the first part of that paragraph and the petition which I have already read out.
21. What is said in respect of this ground of appeal is that the Employment Tribunal failed to take into account a relevant matter and that was the evidence of the First Officer, a Mr Smith. The argument was developed in this way: that the Tribunal having expressed the considerable doubt that they did as to the Master's evidence it was therefore important for them, as they were relying on secondary evidence as to what the Master was told, to examine the possible sources of information for the Master. In his statement the Master had indicated that he had been told the result of the meeting by Mr Smith.
22. We pause to comment that the Master could have been told the result of the meeting by a number of other people but there was not any point taken so far as that was concerned.
23. The position so far as Mr Smith is concerned is that he had put in a statement before the Tribunal but was not present at the Employment Tribunal and was not cross examined. His statement is in the most general of terms, essentially saying that he recalled very little about what had happened at the meeting. It was submitted to us that the care taken by the Employment Tribunal in dealing with Mr Potter's evidence, who did give oral evidence before them and whose bona fides and credibility was clearly attacked by the Applicant, indicates that they overlooked Mr Smith's evidence in its entirety. We do not accept that.
24. It seems to us that a fair reading of the Extended Reasons is that they focus on the main matter in dispute that was before them, which was the attack upon Mr Potter who was clearly a main provider of information. To suggest from that that they overlooked Mr Smith's statement is a suggestion we do not accept.
25. Equally we reject the assertion that it was incumbent upon the Employment Tribunal to carry out any further investigation by way of conjecture or otherwise into what Mr Smith may or may not have told the Master. That is so, notwithstanding the Master's statement that Mr Smith also gave him the result of the meeting. Paragraph 16 of the Extended Reasons itself shows that the First Officer, Mr Smith, was present when the result of the meeting was conveyed to him by Mr Potter.
26. A point raised that Mr Smith may or must have told him about it on another occasion are a matter of pure speculation. It seems to us, if the Applicant wished to run that point he needed to be run below so that the matter could be further investigated. To criticise the Employment Tribunal for not raising that matter in the Extended Reasons is, in our judgment, an incorrect approach applying, for example, the Meek approach to these Extended Reasons. I do not go so far as to pray in aid Retarded Children's Aid Society -v- Day [1978] IRLR 128.
27. So for those reasons that ground fails.
28. Given that conclusion I do not have to deal with the third ground of appeal which related to the issue whether, on the assumption in the last sentence paragraph 35 of the Extended Reasons, the Employment Tribunal had in mind the issue whether it would have made any difference or had any impact on Master Enever if he had known that Mr Lloyd had, as he asserted, suggested or proposed the motion. However I record that for my part I see force in the argument put that the language of paragraph 35 relates that assumption back to the role being limited to that of a minute-taker.
29. The fourth ground relates to the Employment Tribunal's finding that the references in Mr Enever's fax, in which purported reasons for dismissal are set out, to the conduct and activity of the Appellant were references to the conduct and activity throughout the period of the voyage.
30. As a free-standing point I confess that I have had real difficulty in understanding and following this ground because it seems to me that it was perfectly open to the Employment Tribunal to accept and construe this fax in the way in which they did. As to that they were in a

particularly advantageous position in construing that fax because they had heard the evidence and could therefore consider it in its context. Their view of the Master is also, of course, relevant. To use a commonly used expression, that view was that he is a gentlemen who fired from the hip, if not lower, when he committed himself to paper and was somewhat generalised in his views.

31. The importance of the fourth ground point as put, as I understood it, comes from (or is related to) the fifth ground of appeal which relates to the Employment Tribunal's finding that the reason for the Appellant's dismissal was that set out in Mr Dickinson's letter of 20 October 1998.
32. Mr Dickinson's letter is in fairly general terms. He was the person who conducted the internal appeal during which I should add no mention was made that the notice of termination had been given in respect of the Applicant's union activities. This is a point mentioned in the Extended Reasons. It was explained before us in submission by reference to a dispute between the Applicant and his own union and it was pointed out to us that the Applicant had raised the issue of the reason being related to his union activities prior to that appeal hearing and it was not pursued at that hearing. It is to be noted in this context that the Employment Tribunal make the point that it was open to the Applicant himself to speak at that appeal hearing, not least because he did speak at it and again, it seems to us, that is a factor which the Employment Tribunal could take into account in determining the factual issues in this case. It is common ground that at that hearing he did not raise or pursue the point that his contract of employment had been ended by reason of his union activities.
33. Returning to ground five, the argument goes that if you look at Mr Dickinson's letter and then you read his statement that what the Employment Tribunal were indicating, either by their reference to that letter or by their reference to that letter and the fax sent by the Master, was that reasons for his dismissal were other activities which were related to union activities which could, if established, give grounds for a claim in unfair dismissal. In my judgment this is seeking to build far too much on these documents.
34. In my judgment what the paragraph in the Extended Reasons is doing, which is paragraph 36, is going back to and identifying that the overall reason was one relating to the whole of the voyage and the activities of the Applicant during it, including his commitment to the project, including the amount of work that he did, including his performance in the kitchen, including other complaints he had made in relation to Health and Safety matters and pay and is not seeking to isolate or identify matters which could form the subject matter of a claim. Indeed the paragraph concludes with the finding that the reason, or principal reason, was not related to any (my emphasis) trade union activity.
35. It follows for those reasons the fifth ground of appeal fails.
36. The purpose of this argument was that if the Employment Tribunal had concluded that the union activity relied on by the Applicant was not actually the union activity which activated the Master but there were other relevant union activities, the correct course for the Employment Tribunal to have taken would have been to recall the parties before them and to invite further argument and further evidence. That is a point of procedural fairness relating to an issue not raised or advanced by the Applicant and which was therefore not the focus of the evidence.
37. It seems to me that that argument does not arise and is thus wrong for the reason I have given namely that the Employment Tribunal are not identifying union activities in their identification of the reason, or principal reason, for the dismissal.
38. For those reasons we dismiss this appeal.