United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A SHORT (of Counsel) Instructed By: Whittles Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER
For the Respondent	MR B CARR (of Counsel) Instructed By: Eversheds London Scottish House 24 Mount Street Manchester M2 3DB


 


MR JUSTICE HOLLAND:

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at Liverpool, which decision together with Extended Reasons was sent to the parties on the 21^st September 2000. The issue relates to capacity to complain of unfair dismissal.

The Facts

2. We discern the essential facts to be as follows. The Applicants (originally fourteen in number) were employed by the Respondent employers as the warehouse operatives at their Warrington factory. The relevant chronology is:

a. 23^rd July 1999. One such Applicant, Mr. A. Warner, stops work being certified as unfit by reason of brachial neuralgia. For the next ensuing twenty-six weeks he was entitled to full pay; given continuing subsequent absences there was an ensuing entitlement to twenty-six weeks half pay.

b. 5^th November 1999. All the warehouse operatives at Warrington (including Mr Warner, then still off work) were balloted by post with respect to the proposed implementation by the employers of a new shift system. All responded 'yes' to the question 'Are you prepared to take part in strike action?'

c. 15^th November 1999. The employers wrote to all the warehouse operatives, save for Mr. Warner, intimating an intention to implement the shift changes, that is, to start a double day shift system on the 6^th December.

d. 26^th November 1999. By a letter to the employers, the Union gave notice "of our intention to continue current shift working practices commencing 6 December 1999. This will involve warehouse personnel all of whom are on check off. The industrial action is intended to be continuous."

e. 30^th November 1999. Mr. Warner submitted another medical certificate certifying him to be unfit for work for a further three weeks.

f. 3^rd December 1999. The employers write to Mr. Warner:

"As you are probably aware, you have now been absent from work for a substantial period of time and it has therefore been necessary for the company to place you in its Suspense file. This means that we have already had to fill your job and that you are now in a special holding file specifically used for cases such as yours i.e. long term absence caused by illness.

I appreciate of course that you are not fit enough to return to work at present but, because you are now technically without a job, it is important that you contact Personnel Department as soon as your Doctor gives you a final certificate. This will give us the opportunity to liaise with Aftermarket Management and attempt to find you suitable work. I think it is fair to point out however that, although we do usually manage to find a suitable job in most cases, this is not always possible; it depends upon the circumstances prevailing at the time.

We shall, of course, keep in touch with you while you are away and review the position from time to time. Much as the Company sympathises with absence caused by sickness, I hope you understand that it is not a position that can continue indefinitely. In the meantime I hope you will make a recovery to full health and soon be back at work."

g. 6^th December 1999. None of the operatives then at work attended for the new shifts. All such received final written warnings.

h. 7^th December 1999. The same operatives similarly failed to attend. All such were dismissed.

The Tribunal

3. By ET1's dated the 16^th February 2000 all fourteen operatives (that is, including Mr Warner) complained of unfair dismissal. Subsequently Mr. Warner withdrew his complaint – it is common ground that he had not been dismissed, not having been at work on the 6^th and 7^th December. A preliminary point was taken as to the capacity of the remaining thirteen applicants to maintain a complaint of unfair dismissal. That point reflected the terms of the relevant provisions of the Trade Union and Labour Relations (Consolidation) Act 1992:

"Section 238(1). This section applies to an employee who has a right to complain of unfair dismissal (the "complainant") and who claims to have been unfairly dismissed, where at the date of dismissal -

(b) the complainant was taking part in a strike or other industrial action.

(2). In such a case an employment tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -

(a) that one or more relevant employees of the same employer have not been dismissed …

(3). For this purpose 'relevant employees' means -

(b) in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action."

4. Submitted the employers, each complainant was taking part in industrial action; for any such complaint to be justifiable it must be shown that one or more of those taking part in this same industrial action were not similarly dismissed – and as a fact all those that took part on the 6^th and 7^th December were dismissed. Not so, submitted the Applicants, a 'relevant employee', Mr. Warner, had not been dismissed. True, he was not physically at the warehouse on the 6^th and 7^th December but by his vote for a strike he should be taken to be taking part in the action so as to satisfy Section 238(3)(b).
5. The response of the Employment Tribunal was short:

"6(a) Was Mr Warner taking part in the strike? The question must be decided objectively, not by reference to whether the respondents acted reasonably or what their state of knowledge was.

(b) Being on strike means not working when one is contractually bound to. Taking part in industrial action means doing or refraining from doing something by way of exerting pressure on the employer. Sympathizing with a strike or other action is not the same as taking part in it; nor is demonstrating one's solidarity with it; nor voting for it.

(c) Mr Warner was not, when the applicants were taking their action, bound to come to work, or do or refrain from doing anything incidental to his employment with the respondents. He was off sick and was recognised as being so. He was not refusing to work the new shifts, nor refusing to work at all. He might not be described as taking part in a strike or industrial action."

6. The remaining Applicants appeal contending that in this passage the Tribunal is misdirecting itself as to law.

The Submissions

7. The essential submission of Mr Short for the present Appellants is that in paragraph 6(b) as cited above the Tribunal misdirected itself. The issue is not whether Mr. Warner was 'on strike' but whether he was taking part in a strike or other industrial action. Given that this activity is less specific, it is necessary to view the issue as being more demanding and depending upon the inference to be drawn following consideration of all the material circumstances. He seeks support from several authorities, principally a decision of this Tribunal, Bolton Roadways Ltd v. Edwards (1987) IRLR 392 at 396:

"Whether a employee is taking part in strike action is, as we have said, a question of fact. Whether an employee's activity represents a breach of his obligation to attend work, may be relevant to the question whether he is taking part in a strike, but it is not in our view, an essential ingredient. We would take, as an example, the case of an employee who is for the time being on holiday or away sick. That employee by reason of his holiday entitlement or his sickness would not be in breach of his contractual obligation to work; but if he associated himself with the strike, attended at the picket line or took part in the other activities of the strikers with a view to furthering their aims, he would, in our view, be capable of being held to be taking part in the strike. Any other view would be to make nonsense of the plain language of the phrase 'taking part in the strike or other industrial action'. The phrase is not 'on strike'; a person on holiday is not 'on strike', he is on holiday. But he may nonetheless be taking part in strike action."

A Tribunal concerned with an issue as to whether Mr. Warner had been on strike had had inevitably too restricted a view of the issue – hence perhaps, the brevity of the reasons – and the matter should be remitted for a fresh hearing before a differently constituted, differently directed Employment Tribunal.

8. In response, Mr. Bruce Carr defends the decision of the Employment Tribunal. Laconic as paragraph 6(b) is, it can be defended if the second sentence is read as being a juxtaposition to the first. That said, he would submit that the keys to supporting the Tribunal decision are to be found in a decision of this Tribunal, Hindle Gears Ltd v. McGinty (1984) IRLR 477. First, at page 480 there is crucial guidance for this Tribunal:

" … we must remind ourselves that Parliament has constituted the Industrial Tribunals the sole judges of what does and does not represent the process of 'taking part' in a strike, and that we have no jurisdiction to interfere with their conclusion unless it appears to us to be so startling as to offend reason. Having regard to the particular experience and expertise of the Tribunals in the field of industrial relations, we have to take the utmost care, moreover, when applying the criterion of reasonableness, not to fall into the error of substituting our own view of the evidence for theirs."

Second at page 479 there is a particularly opposite observation: " … the essence of a strike involves a concerted withdrawal of labour … and circumstances would have to be very exceptional indeed before it could accurately be said of a servant lawfully absolved under his contract of employment on the grounds of ill-health from supplying any labour at all to his master that he had been engaged in the process of withdrawing labour." Overall as he submits, there are no such exceptional circumstances and what ever be the construction of paragraph 6(b) the decision cannot be factually challenged.

Judgment

9. In our judgment Mr. Short's criticisms of the Reasons are justified. Granted that economy of expression is here a virtue as elsewhere, the text is open to comment: the terse directions as to law are arguably inapposite at worst, opaque at best and the findings of fact hopefully do not do justice to the review of all the circumstances that gave rise to such. That said, there is here a decision upon the facts and given the patent absence of "exceptional circumstances" as identified in Hindle Gears Ltd, not only is there no basis upon which it could be attacked as perverse, arguably it is the only one realistically open to the Tribunal as and when all the circumstances are taken into account. In this context, the lay members of this Tribunal would wish to emphasise that a Section 238 issue is rarely easy and calls for careful factual analysis which should be apparent from the Reasons.
10. Following our own deliberations we are satisfied that in the particular circumstances of this case, any misdirection as to law did not serve to impugn the findings of fact. The full analysis that was called for could not but fail to support the latter given an absence of 'exceptional circumstances' such as would notionally put Mr. Warner into the role of relevant employee on the 6^th and 7^th December. One reflection stayed with us: the logic of the Appellant's case is Mr. Warner should have had a final warning on the 6^th and a dismissal on the 7^th – an astonishing result in the light of the letter of the 3^rd December and highly suggestive of unfair dismissal.