United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOBY KEMPSTER (Of Counsel) Instructed by Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF24 OEE


 


MR JUSTICE LINDSAY (THE PRESIDENT)

1. We have before us as a Preliminary Hearing the Appeal of Krupp Camford Pressings Limited in the matter Mr Ronald Gregory Williams v Krupp Camford Pressings Limited and today Mr Kempster has appeared for the Appellant Krupp. The history of the matter in chronological sequence is this, that on 12 April 2000 Mr Williams, who is a Senior Shop Steward in the TGWU in the employ of Krupp Camford Pressings Limited, presented an IT1 for interim relief and for unfair dismissal.
2. He said that he had been dismissed on 5 April 2000. He said:

"In early October 1999 during the period when we were renegotiating our recognition and substantive agreements the company advised our National Secretary, Mr Woodley that there would be no deal while I remain the shop steward and the company indicated that they were prepared to pay serious money to get me to leave. This information was relayed to me by Mr Tony Woodley who has refused to collude or do any such deal with the company."

3. There had been, he said in his IT1, complaint made not to him but to the Union that he had a negative and disruptive attitude on the Works Council. He was notified with others that he was going to be dismissed for redundancy. The IT1 does not in terms say so but impliedly he complains that he was selected for redundancy because of his trade union activity.
4. On 9 May the company lodged its IT3. It pointed out that it was a supplier to Rover and that there had been a crisis at Rover. It had had to cut costs. It drew up redundancy selection criteria and, in effect, it said that Mr Williams' selection for redundancy was unaffected by his union activity and that on the application of the redundancy selection criteria he had fallen short and hence had been dismissed for redundancy, along with others.
5. That led to a hearing at Cardiff before the Tribunal under the chairmanship of Mr Jeffrey Davies spread over some 5 days from 14 August 2000 to 20 September 2000. On 16 October the decision was sent to the parties. It was unanimous and we will not need to read all of it but (a) said:

"The Originating Application includes complaints of unfair dismissal relative to the applicant's trade union activities and his selection for redundancy."

And (d) said:

"The Applicant was unfairly dismissed from his employment by the respondent for his trade union activities."

6. On 21 November there was a notice of appeal from Krupp Camford. Section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides this:

"Where the reason or principal reason for the dismissal of an employee was that he was redundant but it is shown:

(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held position similar to that held by him and who have not been dismissed by the employer and

(b) that the reason or if more than one principal reason why he was selected for dismissal was one of those specified in Section 152 sub section 1, the dismissal shall be regarded as unfair for the purposes of Part 10 of the Employment Rights Act 1996 (Unfair Dismissal)."

That refers to Section 152 and that says:

"For the purposes of Part 10 of the Employment Rights Act 1996 (Unfair Dismissal), that the dismissal of an employee shall be regarded as unfair if the reason for it (or if more than one, the principal reason) was that the employee (we do not need to read (a))

(b) had taken part or proposed to take part in the activities of an independent trade union at an appropriate time or

((c) does not arise in this case)

Sub section 2.

"In sub section 1(b) An appropriate time means (a) a time outside the employee's working hours, or (b) a time within his working hours at which in accordance to the arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union and for this purpose working hours in relation to an employee means any time when in accordance with his contract of employment he is required to be at work."

The Tribunal held in their paragraph 14:

"Having very carefully considered all the evidence, both oral and documentary, and the respective submissions made on behalf of the parties, the Tribunal makes the following findings:-

(1) Mr Williams was selected for redundancy not because he spent too much time on trade union business, as in the Dundan case, but because of the manner in which he conducted the business, as perceived by the respondent. The respondent could not contend with that submission and yet did nothing about it through the normal channels."

And the reference there is Dundan -v- GPT Ltd (1995) IRLR 403.

A little later they said in their paragraph 14, sub paragraph (4):

"In the Tribunal's view, the criteria that was used whereby the applicant was selected for redundancy was devised by the respondent specifically against Mr Williams."

And in their final paragraph 15, having set out other findings :

"Based on those findings and for those reasons, the unanimous decision of the Tribunal is that Mr Williams was unfairly dismissed by the respondent from his employment for his trade union activities."

7. It is not altogether clear whether they are finding an automatic unfair dismissal falling within sections 152 and 153 or alternatively were finding that in the ordinary application of redundancy selection criteria a person who worked part of his time on behalf of the union would naturally and inescapably come out poorly because instead of working full time for the company in a sense he would be devoting part of his time to trade union activity. But the impression overall, after the Tribunal had specifically referred to section 153, was what they are finding was an automatically unfair dismissal within the provisions of the statute although it has to be said is not altogether clear.
8. One might have thought, too, that the Tribunal would have gone on to say that even if he was not dismissed for automatically unfair grounds under the statute that if, as they held, that the criteria had been devised specifically against him that would be a manifest unfairness of a different kind in any event but when they revert to that in the paragraph 15, which is their conclusion, they do limit themselves to a view that he was unfairly dismissed for his trade union activities. However, as will have been seen from sections 152 and 153, it is not any trade union activity now that makes dismissal on account of it unfair. One has to have a view to what has been the appropriate time within the definition that we read.
9. Moreover, there might even be a point that distinguishes between the manner of the trade union activity and the activity itself, which is a point that the Tribunal draws attention to at its paragraph 14, sub paragraph (1), as we have earlier read it. It is also to be borne in mind that for the dismissal to be automatic within the statute the activities have to be of an independent trade union which conceivably needs some investigation of the relationship between the activity and the authority given to the particular individual. It does not necessarily follow, simply because what is done is done by a senior shop steward, that what he does can be, without more, said to be activity of trade union. These, it seems to us, are questions which first of all may well be arguable and but, secondly and perhaps more importantly, in a sense are questions that could be of wide importance and applicability.
10. In the circumstances we think this matter should go forward to a full hearing. When both sides, that is to say, employer and employee - are back in the Appeal, in other words, once Mr Williams and his advisers have come back in for the full hearing inter partes, it may then be appropriate for one side or both to seek notes of evidence. But we do not think it is very valuable to address the question of notes of evidence at this stage because it will be better to ask the Chairman for notes, if it ever becomes relevant, when both sides have considered the position so that one can have, so to speak, a unitary approach to the Chairman rather than possibly 2 separate ones.
11. So, we say nothing about Chairman's notes today but we do direct that this matter can go to a full hearing - Category A - and that it will take an estimated half a day.