United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	TOBY KEMPSTER (of Counsel) Instructed By: Messrs Eversheds Solicitor Fitzalan House Fitzalan Road Cardiff CF24 0EE
For the Respondent	PAUL EPSTEIN (of Counsel) Instructed By: Leo Abse & Cohen Solicitors 40 Churchill Way Cardiff CF10 2SS


 


MR JUSTICE BELL:

1. These are two appeals by the employer. The first is an appeal against a decision of the Employment Tribunal held at Cardiff over a number of days in August and September 2000.
2. The Decision with Extended Reasons was sent to the parties on the 17^th October 2000. It noted that the Originating Application presented by Mr Williams included complaints of unfair dismissal relative to both his Trade Union activities and his actual selection for redundancy and it concluded that he was unfairly dismissed from his employment for his Trade Union activities. It directed re-listing for a Remedies Hearing and the second appeal, again by the employer, is against the remedies decision which was sent to the parties on the 25^th January 2001 after a hearing on the 15^th December 2000. The outcome of that appeal is dependent upon the outcome of the liability appeal if it succeeds, but the appeal against the remedies decision is pursued even if the appeal on the issue of liability is lost.
3. We turn to the background to the allegations of unfair dismissal. It was common ground before the Employment Tribunal that as a result of the crisis which struck the British car industry in the early part of 2000, a redundancy situation prevailed at the Krupp Camford's Llanelli factory in March/April 2000 resulting in the identification of 99 potential redundancies in three waves, the first of which involved 18 employees from the press shop and the assembly shop. It eventually transpired that in excess of 130 redundancies had to be made as a result of the downturn in business.
4. The TGWU were the recognised Trade Union on the site and a Collective Agreement had existed since 1999 which dealt, in part, with the procedure to be followed to achieve any reduction in the work force, subject to a preamble that the employer had the right to manage, plan and organise its operations.
5. To this end a "redundancy selection criteria" was agreed. There were four criteria:

1) Length of service

2) Attendance (sickness or unauthorised absence in the last 2 years)

3) Discipline (recorded warnings in the last 2 years)

4) Relevant Skills (being the top 6 relevant skills for each work group)

Against each criterion a score of 1 to 4 points was to be awarded, save for length of service, which attracted double weighting.

6. Mr Williams was employed as a press operator at Llanelli from March 1993 and he was a senior shop steward for the TGWU. He was one of the first wave of employees to be made redundant on the 5^th April 2000. He complained to the Tribunal that his dismissal was automatically unfair because he has been selected for redundancy on grounds related to union activities, for the purposes of sections 152 and 153 of the Trade Union and Labour Relations Consolidation Act of 1992, and that in any event his selection for redundancy, and therefore his dismissal, was of general unfairness for the purposes of Part X of the Employment Rights Act 1996.
7. Section 152(1)(b) provides that for the purposes of Part X of the 1996 Act relating to unfair dismissal:

"(1) … 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 –

(a) …

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

Section 153 provides:

"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 positions 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, the principal reason) why he was selected for dismissal was one of those specified in section 152(1),

the dismissal shall be regarded as unfair for the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal)."

It is not necessary to rehearse any part of Part X of the 1996 Act relating to unfair dismissal. Generally, in paragraph 4 of the Extended Reasons, the Tribunal noted that both parties representatives:

"Confirmed that if there was a finding in favour of the applicant of unfair dismissal relative to his trade union activities, the Tribunal need not consider nor make a finding on the complaint of unfair dismissal regarding selection of the applicant for redundancy"

8. So having found unfair dismissal relating to the Applicant's Trade Union activities, the Tribunal did not need to go on to decide in terms, the question of general unfair dismissal. In the light of the employers' argument on this appeal that the Tribunal did not explain or give understandable reasons for its decision, it is necessary to describe the structure of the Tribunal's extended reasons for its decision.
9. After introductory paragraphs relating to the nature of the proceedings and the hearing, ending with the words that we have just quoted from paragraph 4, the Tribunal recounted in paragraph 5 the outlines of the issues proposed by the employer's counsel and Mr Williams' solicitor. In paragraphs 6 and 8 it stated the nature of the Applicant Mr Williams' employment as a press operator at Llanelli from March 1993 to the effective date of his dismissal on the 5^th April 2000.
10. In paragraph 7 it stated:

"The reason and the category of such reason for the purpose of the Employment Rights Act 1996 was redundancy"

Those words, taken in context, referred of course to the reason for the dismissal.

11. In paragraphs 9 and 10 the Tribunal listed the witnesses by whom evidence was given for employer and Applicant and their positions in or in relation to the employer or the TGWU or both. In paragraph 11 the Tribunal summarised the submissions of the Applicant's solicitor, starting with a number of questions suggested by the solicitor, summarised by the Tribunal in five Roman numbered sub-paragraphs. We need refer only to sub-paragraphs (i) and (ii). In sub-paragraph (i) the Tribunal recorded the following suggested question;

"Did the respondent want the applicant out of the factory at any price? Messrs Francis and Armitage did discuss their concerns about the applicant with Mr Woodley. However, they should have followed the ACAS code and brought in a full time trade union officer as it was a local and not a national issue. Mr Woodley was adamant about the respondent paying money to get rid of the applicant and he spoke to Mr Williams because he was prompted to do so by the respondent. The Tribunal was asked to accept Mr Woodley's evidence."

12. We interpose that Mr Francis was the group Chairman and Managing Director of the employer and Mr Armitage its Group Operations Director. Mr Woodley was the TGWU National Secretary for the vehicle building and automotive group. Sub-paragraph (ii) posed the question:

"Did the respondent de-recognise the applicant? Mr Selby wanted to see Mr James on his own. Mr Williams was excluded from all trade union activities as evidenced by Messrs James and Richards. If the applicant's conduct was that bad, why was the disciplinary process not used after calling in a full time trade union officer? In that respect, the company had a disciplinary process for one day's unauthorised absence by an employee. There was no reason provided to the company by the applicant to be disciplined."

13. Mr Selby was the employer's Plant Operations Manager. Mr James was an Operator and Senior Shop Steward and Mr Richards was an Occupation Tool Maker and Senior Shop Steward. We stress that the matters in sub-paragraphs (i) and (ii) are not set out as findings of fact by the Tribunal, at least at that stage of the decision, but as an account of the submissions of the Applicant's solicitor.
14. Paragraph 12 of the Extended Reasons refers to the submissions of counsel for the employer, largely by saying that it was not necessary to repeat his written Skeleton Closing as reference could easily be made to it. Paragraph 13 refers to section 153 of the 1992 Act and to the case of Dundan v. GPT Limited [1995] IRLR 403 and another case authority. It is not immediately clear to us whether that paragraph relates to the Tribunal's own comments or those of counsel for the employer. In paragraph 14 the Tribunal came to its conclusions which we must quote in full as follows:

"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 situation and yet did nothing about it through the normal channels."

15. We interpret the reference to the manner in which Mr Williams "conducted the business" as a reference to the employer's case that it found Mr Williams aggressive and abusive when performing Union activities and that he had allegedly verbally threatened a senior manager with violence.

16. "(2) If the respondent had complaints against Mr Williams as a worker, the disciplinary procedure in accordance with his contract of employment was the appropriate course.

(3) As to the complaint concerning the applicant as a trade union official, the ACAS code provided for the same to be discussed with a senior trade union representative or full time official. Since a senior trade union representative is a senior shop steward, of whom the applicant was one of three, the respondent should have discussed the matter with a full-time official and not a national officer, Mr Woodley albeit informally. That the respondent raised the matter with Mr Woodley rather than with the appropriate full-time official showed how earnest the respondent was to get rid of the applicant as a trade union officer. The Tribunal found Mr Woodley's evidence factual."

We interpose that that seems to us to be another way of saying that they accepted Mr Woodley's evidence as true and accurate in so far as it referred to the employer's approach to him about paying money to get rid of Mr Williams. See paragraph 11(i).

17. "(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. In fact, it was a criteria outside the formal Works Agreement that had previously been reached by the parties. That criteria was not acceptable to the trade union who made representations in that respect to management. It was inevitable that, by virtue of the criteria operated by the respondent, the applicant was to be included in the first group of employees made redundant.

(5) The Tribunal had no satisfactory evidence before it to conclude that the applicant was given an oral warning. It was not recorded anywhere. Mr Samuel who allegedly gave the oral warning to the applicant was not called by the respondent in evidence nor did the respondent check that aspect of the matter with Mr Bowen, when Mr Williams challenged that an oral warning had been given to him. It is of relevance that Mr Bowen expressly stated, when giving evidence, that he was not present nor involved in any warning given to the applicant, if the applicant had been the subject of a disciplinary hearing, it would have taken place in the presence of a trade union District Officer and there would be a record of the decision, which would need to be countersigned by a trade union District Officer. As the applicant was a Senior Shop Steward, he would have been represented by a District Officer. It should be recorded by the Tribunal that it does not accept the explanation of the respondent's Counsel that a marking of eight points for the applicant, which would have delayed the applicant's redundancy, was a matter of remedies rather than liability. The duty and responsibility of the Tribunal is to consider and decide whether the applicant was unfairly dismissed at the agreed effective date of termination of employment. That is a question of liability.

(6) There was no evidence of previous action against the applicant for his trade union activities prior to his redundancy. Notwithstanding that, Mr Williams had been de-recognised by the respondent as an officially elected Senior Shop Steward contrary to proper procedures.

(7) The Tribunal was impressed by the evidence of Messrs James and Richards for the applicant. They clarified, without any prejudice, for the Tribunal what was the actual reality of the situation.

(8) The consequence of the criteria, used for selection for redundancy that applied to the applicant, was that the markings did not properly reflect an objective and realistic assessment of the applicant's abilities and performance for a genuine selection purpose. Relevant examples in that respect included fork-lift truck driving, crane driving, key machines and setting."

16. Paragraph 15, the last paragraph of the Tribunal's extended reasons, concluded:

"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."

Of course having made that finding, the Tribunal did not in accordance with the parties' agreement recorded in paragraph 4, have to go on to deal with unfair dismissal generally regarding selection for redundancy.

17. The original grounds of appeal are summarised in Mr Kempster's very helpful skeleton argument as:

1) Alleged failure to properly explain why the Respondent lost.

2) Alleged failure to identify the relevant issues and or failure to make findings on the submissions made.

3) Alleged failure to identify the evidence upon which the findings it did make were based, and further made findings that were unsupported by any evidence, and made findings which were perverse.

18. Mr Kempster entered into a detailed analysis and criticism of the Tribunal's extended reasons, before contending that the Tribunal's extended reasons did not state what questions the Tribunal asked itself before concluding that the dismissal was automatically unfair, and did not set out why and on what basis it came to the factual findings which it did come to in paragraph 14.
19. Mr Kempster's main points on the original grounds of appeal were essentially as follows.

Once a difficulty arises between an employer and employee, the context of which is what the employee does in relation to his trade union function, the risk is that a Tribunal will conclude that he has been dismissed or selected for redundancy by reason of his trade union activities. So it is particularly important to see whether the employee is treated for redundancy in the same way as others in the press shop or more partially. Unless the Tribunal could conclude that the employer acted unfairly in respect of marking for redundancy, it could not go on to infer that trade union activities rather than a legitimate reason were the basis of redundancy, because it could not reject the employer's explanation that the redundancy was genuine. Even if there was support for the vital conclusion at paragraph 14(1) of the Extended Reasons in the form of the findings in sub- paragraphs (2), (3) and (6) that still left paragraphs (4), (5), (7) and (8) to consider. In fact, Mr Kempster contended, sub-paragraphs (2), (3) and (6) only showed that the employer had a motive for dismissing Mr Williams, and sub-paragraphs (4), (5), (7) and (8) were all vulnerable to attack either in themselves or for lack of sufficient reasoning or sufficient reference to the evidence upon which they were based.

20. Mr Kempster referred us to the well known guidance in Meek v. The City of Birmingham District Council [1987] IRLR 250, in particular at paragraphs 7 and 8, in relation to the giving of reasons and the particular need to explain to the loser of a Tribunal application or hearing just why he or she has lost.
21. Expanding on his attack on the matters in sub-paragraphs (4), (5), (7) and (8) of paragraph 14 of the extended reasons, Mr Kempster argued firstly, in respect of sub-paragraph (4), there was a stark finding in the first sentence of that sub-paragraph that the criteria for redundancy were devised by the employers specifically to disqualify Mr Williams at the first call. If the Tribunal was to make such a devastating finding it was encumbent upon it to explain why. It was not even suggested by Mr Williams' solicitor that the criteria for redundancy were devised by the employer specifically to mitigate against Mr Williams. Even if selection for criteria made it inevitable that Mr Williams would be in the first draft of redundancy that did not mean that the criteria were selected for that purpose.
22. In relation to sub-paragraph (5) Mr Kempster contended that the Tribunal did not address the question of whether the manager scoring Mr Williams could reasonably have thought that he had received two warnings. There was only one warning in fact. In respect of sub-paragraph (7), Mr Kempster contended that the Tribunal did not explain why it preferred the evidence of Mr James and of Mr Richards and in any event did not explain what the reality of the situation was and how it was deduced from the evidence of those witnesses. In respect of sub-paragraph (8), Mr Kempster contended that the Tribunal had fallen into the trap of marking the Applicant itself, whereas there is clear authority that the Tribunal should respect the decision of the employer on such matters, provided that the employer's conduct falls within a reasonable band of employer responses.
23. In answer to those points Mr Epstein approached the matter from a different starting point. He contended that the first question was what was the principal reason for dismissal. The Tribunal impeccably asked and answered that question at paragraph 14(1). That was one key conclusion. The second key conclusion was contained in the first sentence of paragraph 14(4). Both the findings in 14(1) and in the first sentence of 14(4) were justified by all the other findings in paragraph 14. It was true that the finding in the first sentence of sub-paragraph (4) was not expressly put to any of the employers witnesses by Mr Williams' solicitor, but that was not the end of the matter. There was no error of law in the Tribunal concluding as it did in the first sentence of paragraph 4(4), but even if the first sentence of paragraph 14(4) could not be supported, the conclusion in paragraph 14(1) was still valid in the light of all the other findings expressed in paragraph 14.
24. In our view, the finding which the Tribunal made in paragraph 14(1) was the vital finding and disposed of the application in favour of Mr Williams on the way the case was presented to the Tribunal. In our view the conclusion in paragraph 14(1) was amply supported by the findings in sub-paragraphs (2), (3) and (6) which are sufficiently explained and not challenged as factually inaccurate or as conclusions which the Tribunal was not entitled to reach on the evidence.
25. In short the Tribunal found that the employer was disturbed by the conduct of Mr Williams, and treated that conduct as conduct of a trade union official rather than conduct as a worker, and gave reasons for those conclusions, which were vital to the issue of why Mr Williams was selected for redundancy. We do have difficulty with the first sentence of paragraph 14(4), but we are not prepared to conclude that the conclusion there reached was one which no reasonable Tribunal could have come to on the basis of the matters rehearsed in the remainder of sub- paragraph (4) and indeed in the remainder of paragraph 14 generally. We have greater difficulty with sub-paragraph (7) but in our view what is set out in sub-paragraph (7) adds nothing to the general import of the Tribunal's reasons.
26. The Tribunal was entitled to find and take account of all the other matters in the remainder of sub-paragraph (4), after the first sentence, and sub-paragraph (5) and sub-paragraph (8) in addition to the matters in sub-paragraphs (2), (3) and (6). So far as sub-paragraph (8) is concerned, in our view, all the Tribunal was doing was saying that the criteria did not result in a proper reflection of the Applicant's value.
27. In our view, this Tribunal could have more fully expressed its findings of fact, in particular setting out some of the background to the matter, the better to relate its findings to the issues in question, but it did at the end of the day, taking the Extended Reasons as a whole, in our combined view, explain to the employer why he had lost. We therefore reject the original grounds of appeal.
28. The next ground of appeal was one raised by the Employment Appeal Tribunal at the preliminary hearing of the appeal. It amounts to this, that where as here it is the manner of a shop steward's conduct which is the reason for his dismissal by way of redundancy, the Tribunal must be careful to distinguish what he does as a trade union activity on behalf of the trade union, from what he does in his own personal position. Only if his actions fall into the former category does section 152(1)(b) apply. The Tribunal must, it is contended, expressly address the question of whether the employee's relevant activities fall within sub-section 1(b) and if it concludes that they do and that they were the reason for dismissal by way of reason of redundancy the Tribunal must explain and give reasons for its decision to that effect. This, Mr Kempster submitted, the Tribunal failed to do. We accept that there will be cases where the distinction posed by Mr Kempster will be or may be important. A case of a shop steward assaulting a fellow employee or a manager in the course of discussions about a dispute which affects the shop steward, both personally and in his trade union function might, depending upon the particular circumstances, be such a case, but in our view there are two answers to Mr Kempster's decision in this regard in this case. First, the point was never made before the Tribunal below. As Mr Epstein has pointed out, the employer's answer in form IT3 at paragraph 14 states:

"The Respondent has encountered difficulties in their dealings with the Applicant in the performance of his union activities on account of his attitude which, on occasions, has been aggressive and abusive. This culminated in Brian Francis (Group Chairman/Managing Director) writing to Tony Woodley (National Officer/TGWU) to express his concerns about the Applicant. Following this, meetings took place with TGWU officers regarding the Applicant's future role and the TGWU began their own internal investigation regarding the Applicant's position…"

Moreover in his skeleton argument for the Tribunal hearing, Mr Kempster stated at paragraph 5(1) that the Applicant,

"Relies upon the Respondent being generally critical of his attitude/approach as a Trade Union representative."

That was set out under a general heading relating to "section 103 dismissal"

29. In those circumstances it seems to us that the Tribunal can hardly be criticised fairly for not focussing expressly upon the possible difference between activities of an employee in his position as shop steward on the one hand and in his personal position on the other. It was not a matter of controversy so far as we can see before the Tribunal.
30. Secondly, and in any event, the Tribunal clearly did decide that the manner in which the Applicant conducted himself, and which was the reason for his selection for dismissal in the judgment of the Tribunal, was part of his trade union activities. In paragraph 14(1), it referred to "the manner in which he conducted the business", which is clearly a reference back to the "trade union business" earlier referred to in paragraph 14(1). In paragraph 14(2) the Tribunal pointed out that the employer did not treat the conduct in question as conduct "as a worker" which we take to be in contra-distinction to conduct of someone taking part in trade union activities. In sub-paragraph (3) it dealt with the employer's complaint, "concerning the applicant as a trade union official"
31. The Tribunal found significance, as in our view it was entitled to do, in the treatment of the Applicant's alleged conduct as a trade union activity, and not as an activity as a worker/employee.
32. We reject that further ground of appeal, introduced after the preliminary hearing.
33. It follows that the appeal against the decision of the Tribunal that Mr Williams was unfairly dismissed for his trade union activities, i.e. that this was a case of automatic unfair dismissal is rejected.
34. Turning to the remedies appeal, the basic award was agreed. The Tribunal made a compensatory award of £5825.03. Taken with the agreed basic award that came to a total award of £7315.03.
35. The challenge made by Mr Kempster is to the Tribunal's approach to the compensatory award, which was based on loss of employment to the date when the Tribunal decided that Mr Williams would have found alternative employment had he made reasonable attempts to do so. The Tribunal decided that that date was the 15^th December 2000, the date of the remedies hearing. There was therefore to be no compensation for any future loss. The employer argued before the Tribunal that at most Mr Williams would have scored 8 on a redundancy assessment and so he would have gone with the second batch on the 30^th of April 1999, only 25 days after he went in fact. So, it was argued, there should be no compensatory award in effect, since the parties were agreed that any loss of earnings should run from the 28^th of April 1999. The Tribunal refused to embark on the exercise of seeing where such points as the Applicant might have been awarded would have taken him so far as redundancy was concerned. It is argued that there no question of the Tribunal needing new evidence. It could make the decision on the evidence it had heard concerning liability. Indeed on the previous occasion it had decided that the question of marking related to the question of liability rather than to the question of remedies. It was contended and it is contended today before us that the Tribunal could decide when Mr Williams would have become redundant on any proper assessment of the points to which he was entitled under the redundancy marking exercise and criteria. Mr Epstein's answer to that argument is that, firstly, the potential appeal against the remedies decision is not put in this way in the Notice of Appeal, and that, secondly and any event, it amounts to a charge that the Tribunal's approach and conclusion were perverse. In our view, as Mr Epstein argued, the Tribunal was entitled to say in effect:

"We found that the Applicant was dismissed by way of redundancy for trade union activities and we are not going to embark on the exercise, which we judge to be speculative, of enquiring when he would have been made redundant if he had been properly treated."

In our view a reasonable Tribunal properly directing itself could take that pragmatic and robust approach to the circumstances of this case. The appeal against the remedies decision is accordingly also dismissed.