United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WHITCOMBE (of Counsel) Instructed By: Thompsons Price House 37 Stoney Street Lace Market Nottingham NG1 1NF
For the Respondents	MR A SMAIL (of Counsel) Instructed By: The Solicitor Ashfield District Council Council Offices Urban Road Kirkby in Ashfield Nottinghamshire NG17 8DA


 


MR JUSTICE HOLLAND:

1. This is an appeal from a decision of an Employment Tribunal sitting at Nottingham, which decision together with Extended Reasons was sent to the parties on 22 November 2000.
2. The complaint before the Tribunal was made by reference to the Trade Union and Labour Relations Consolidation Act 1992. The provisions of that Act relevant to this matter are as follows.

Section 146(1):

"(1) An employee has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the purpose of -

(a) …

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so …

…

(5) An employee may present a complaint to an employment tribunal on the ground that he has been subjected to a detriment by his employer in contravention of this section."

Section 148(1):

"(1) On a complaint under section 146 it shall be for the employer to show the purpose for which he acted or failed to act."

Section 149(1):

"(1) Where the employment tribunal finds that a complaint under section 146 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure complained of."

3. At all material times the Applicant, Mr Richard Buckwell, was employed by the Respondent Council as a Senior Housing Officer (Research and Development). As such his duties, as found by the Tribunal included:

"… in relation to any possible sale of the respondent's council housing stock, the applicant's duties would include the research to prepare for options to put before councillors and, if the policy was decided upon, to represent the Council in meeting with interested bodies and tenants to put across the respondent's position."

4. There was a further finding by the Tribunal that his contract of employment incorporated a Code of Conduct. There was an additional finding that that Code of Conduct included the following provision:

"The public is entitled to demand of a local government officer conduct of the highest standard and public confidence in his integrity would be shaken were the least suspicion to arise that he / she could in any way be influenced by improper motives. An officer's off duty hours are his / her personal concern but he / she should not subordinate his / her duty to his / her private interests or be in a position where his / her private interests conflict. Interests which are not pecuniary can be just as important. You should not allow the impression to be created that you are, or may be, using your position to promote a private or personal interest. Private and personal interests include … those arising through membership of … trade unions."

5. In April 1999 Mr Buckwell was appointed joint branch secretary of the Respondents' branch of the recognised trade union, UNISON. In that same month he was signatory to a letter to the Morning Star opposing the sale of Council housing stock.
6. By the end of 1999 the Respondent Council was required by the Government, notwithstanding the policies upon which it had been elected, to carry out an option appraisal with respect to its housing stock
7. On 30 November 1999 that appraisal was the topic of a meeting conducted by Mr Dethick as head of housing services. Mr Buckwell attended as a union official and as a housing officer who would, by virtue of his employment, be involved in that appraisal.
8. In the course of the evening of 1 December 1999 Mr Buckwell, then away from work sick, attended a meeting at public house that had been called by the Ashfield Federation of Tenants and Residents Association to further its opposition to any transfer of Council housing stock. This federation had invited Mr Buckwell to attend as a union official sympathetic to their views. He was seen by a number of Councillors to be there and taking part. It is to be noted that this federation had produced a leaflet entitled "Defend Ashfield Council Housing". There is a finding by the Tribunal in these terms:

"It suggested that people's homes were at risk and that the Council, which had at a previous election committed itself to keep Council housing, was now looking at options to privatise the housing stock. It asked the public to join the campaign to stop any sale."

9. On 8 December 1999 on his return to work Mr Buckwell was seen by Mr Dethick and by the Director of Community Services, Mr Brown. Mr Buckwell agreed that he was involved in the UNISON campaign against the transfer of housing stock.
10. Mr Dethick decided that he had to investigate further Mr Buckwell's role in this opposition and took the view that this would be facilitated were Mr Buckwell to be suspended. Accordingly the decision was arrived at to suspend him, which decision was subsequently confirmed by way of a letter of 8 December 1999. As far as relevant that letter reads:

"I am writing to confirm my decision to issue you with a precautionary suspension. The suspension was issued whilst an investigation is carried out into your alleged involvement in an anti-Council house transfer media campaign, as a result of an announcement that the Council is to carry out a Housing Options Appraisal.

I must stress that the suspension is without prejudice and is not a disciplinary penalty."

The letter then goes on to indicate that his income would remain unaffected but then adds this:

"During the suspension, you should not attempt to contact any other Council employee other than an employee representative or a member of the Personnel Section; and similarly, should not visit any Council premises without prior arrangements being made with a representative of the Personnel Section."

The letter concluded by pointing out that the suspension would immediately be withdrawn, should the investigation establish that there had been no breach of discipline and Mr Dethick enclosed a copy of the relevant section of the Council's disciplinary procedure.

11. The immediate reaction of Mr Buckwell was to make a complaint pursuant to section 146(5) to this Tribunal complaining that the Respondent Council, by virtue of the action just described, was in breach of section 146.
12. During the period of the subsequent suspension there was further conduct that became material to the Respondent Council. For this we turn to the findings of the Tribunal. In paragraph 12 the Tribunal finds:

"During the period of his suspension the applicant stood outside two council premises and lobbied employees to seek to get their support to have his suspension lifted. The respondent took the view that he was actually on council premises, although the applicant had been careful to stand in a position where he believed he was not on council premises. Whether or not he was on council premises it is clear that the applicant was in breach at least of the term of the suspension that he should not attempt to contact any other council employee."

13. Further, there was a finding that, again in the course of this period of suspension he had been interviewed on local radio saying, "I feel the reason that I have been suspended is that I stood up for the retention of Council housing in Ashfield and some people want to get rid of Council housing in Ashfield".
14. On 17 December 1999 he was seen again by Mr Dethick. The decision had been made to commence disciplinary action against him. There would be two bases for this action. First, his alleged contravention of the Code of Conduct and, second, his alleged failure to follow instructions as set out in the letter of suspension, particularly such not to contact Council employees or attend Council premises. That disciplinary process resulted in a hearing of 12 January 2000 before Mr Brown. The practical effect of that hearing appears with careful clarity from a long letter written by Mr Brown dated 14 January 2000. By way of that letter Mr Brown confirms the decision that he had made following the disciplinary hearing. He indicates in the body of the letter:

"The hearing concerned two principal issues:-

a) Your involvement in a campaign entitled "Defend Ashfield Council Housing" and the conflict of interest arising out of that involvement; and

b) Breach, by you, of the terms of your precautionary suspension, whilst investigation was being carried out."

He indicates in the body of the letter that he is dealing with what he perceives to be a conflict of interest. Dealing with the meeting at the public house he says this:

"Given your position as the Housing Research and Development Officer and as a Senior Officer of this Council, I consider that the sensible and appropriate course of action by you should have been to withdraw from that meeting. Instead you chose to participate.

I also consider that in your capacity as a Senior Council Officer you could have explained the Council's intention was to carry out only a Stock Option Appraisal, and also that the Council's current policy is not to transfer the Council Housing Stock. This was clearly not done and the subsequent campaign may well have had the effect of unnecessarily fuelling the fears of tenants and staff."

The letter then went on to address the perceived conflict between pursuit of union policy and Mr Buckwell's position as a Council employee. It did so in these terms:

"With regard to UNION's official support nationally for keeping social housing under local democratic control and your role as UNISON Branch Secretary, I acknowledge that you would legitimately share this view. I had before me sufficient evidence to satisfy me that you have been pro-actively involved in the Union Campaign. I would refer specifically to the letter in the 'Morning Star' publication which you co-signed and your attendance at the 'Defend Council Housing' Campaign in Derby. I consider however, that in this instance you should have informed your Union colleagues that it was inappropriate for you to take part in housing issues directly affecting Ashfield District Council. My reason for this is that your post with this Authority, and the key tasks and responsibilities as specified in the job description directly relate to issues of housing policy.

I do not consider that your right to carry out legitimate Trades Union activities is in question in this case and therefore do not consider that the Council are in breach of the terms of the Trade Union and Labour Relations (Consolidation) Act 1992 or any other legislation protecting that right.

I acknowledge that you have duties to fulfil as a Union Branch Secretary, however, you are first and foremost an employee of this Council and accordingly are subject to the same rules and regulations governing your contract of employment and service in local government as all other employees."

The letter then goes on to cite the employee's Code of Conduct. It refers to the radio interview and then it continues:

"I am satisfied on the evidence available that you are in deliberate breach of your conditions of suspension. My reasons for this are:-

a) On the 10^th December, 1999 you were present on Council premises engaging in conversation with council employees.

b) On 16^th December, 1999, at the gates of the Council's Depot you further approached employees with leaflets relating to your case whilst the investigation was underway. The purpose of the precautionary suspension was to allow a fair investigation to be -carried out. Your actions could have prejudiced on that investigation.

Furthermore, you took part in a radio interview in connection with your suspension."

15. Having therefore reviewed the issues as perceived by Mr Brown, and having done so with some obvious care, he then confirms his decision which is to issue Mr Buckwell with a first written warning which would stay on his personal file for a period of six months.
16. Turning then from these essential facts to the proceedings before the Employment Tribunal, it is necessary first to point out that Mr Buckwell provided what was described as "an amended ET1" which carefully set out, at some length, his full complaints about the conduct of the Respondent Council. On his behalf Mr Whitcombe recognises that, strictly speaking, this material should have founded another and further complaint to add to the first complaint. In the event, however, the Employment Tribunal sensibly did not stand upon the letter of the law in this regard but dealt with the matter as a whole, as if all the allegations had been the subject of the first complaint. With that introduction we turn to the way in which the Employment Tribunal approached this matter, focusing upon that which is material to this appeal.
17. The Tribunal rightly sought to focus upon the Respondents' "purpose", that being the concept crucial to section 146(1) and the subject of the burden of proof as stipulated by section 148(1). It sought to direct itself as to "purpose" as a legal concept in paragraph 20 of the Reasons. This reads:

"The second important legal issue is what is meant by the purpose of the action. The House of Lords decision in Associated Newspapers Ltd v Wilson [1995] IRLR 258 shows how important it is to determine the real purpose of the action. We have also taken account of the more recent Court of Appeal decision of F W Farnsworth Ltd v McCoid [1999] IRLR 626. Although that was a decision on a preliminary point, the Court of Appeal accepted that by de-recognising Mr McCoid as a shop steward 'The only effect of the action taken by the employer is to deprive Mr McCoid of having the status and being able to perform the activities of a shop steward on behalf of his fellow employees'. However the court specifically drew the distinction between action for the purpose of preventing or deterring him from taking part in the activities of the trade union, as opposed to the purpose of removing someone from the office of shop steward, who was not an appropriate person to fulfil the role of a shop steward. In other words, even if the action is clearly done to prevent a person carrying out activities of a trade union, the Tribunal must consider the reason why the employer took that action to determine whether it was a prohibited reason. In that respect we also find helpful the comments of Phillips J in Lyon and Scherk v St James Press [1976] IRLR 215, when dealing with dismissal for trade union activities he said 'The special protection afforded by Section 152 to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. We do not say that every such act is protected. For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal, which would not be unfair'."

18. Thereafter, in paragraphs 24 and 25, the Tribunal made findings that in attending that meeting and in lobbying Council employees Mr Buckwell was, on each occasion, taking part in the activities of an independent trade union.
19. Then comes, in paragraphs 26, 27 and 28, the findings of the Tribunal with respect to "purpose". It is necessary to cite these paragraphs in full as follows:

"26 Turning to the second question of the respondent's purpose for the actions taken. This has to be determined by considering why, in the case of the suspension, Mr Dethick decided to do it, and why, in the case of the discipline, Mr Brown decided to do it. When the applicant was suspended on 8 December 1999 Mr Dethick believed, and had reason to believe, that the applicant was significantly involved in the campaign by the tenant's association to oppose the sale by the respondent of its housing stock and to oppose any preparatory work for it. It had become a very serious and pressing issue because of the involvement of the councillors and the media. It was essential for him to investigate the extent of the applicant's involvement. Despite the fact that in other cases the respondent has not suspended people where one might expect it to have done so, we are satisfied with Mr Dethick's explanation that he suspended the applicant to facilitate his investigation. We take into account that our experience of local authorities shows that this was a particularly quick investigation and disciplinary process. We also note that when the investigation concluded on a Friday and the decision was taken to commence disciplinary action, the applicant's suspension was lifted on the following Monday being the next working day and he was thereafter not suspended. It is clear that the terms of the suspension which restricted him from attending the council premises or speaking to any of its employees were standard terms which would have applied whoever, and in whatever circumstances, a person was suspended. The respondent has therefore satisfied us that the suspension was for a purpose which is not prohibited by Section 146. Any curtailment of the applicant's union activities was a consequence of and not the purpose of the respondent's action.

27 At the disciplinary hearing Mr Brown accepted some of what the applicant said. However the applicant accepted that he had been involved in the tenants meeting called to oppose the stock transfer appraisal and any sale of council housing. Mr Brown took the view that that was incompatible with the applicant's duties under his contract of employment. In particular that the applicant's job would require him to prepare reports for councillors, which would involve these issues. By coming out so publicly on one side he had shown a bias, which would substantially damage his ability to prepare such a report and for any report prepared by him to be accepted as impartial by the councillors. (We accept that there is no evidence to show that the applicant ever did act in a way incompatible with his duties of impartiality). Secondly, the applicant would have been put in an impossible position, if the council did determine to sell its housing stock, in putting across the council's position, which he had so openly and publicly opposed. In terms of the second limb of the disciplinary action there is no doubt that the applicant was in breach of the standard terms of suspension, whether or not he had actually gone on to council premises. Any employer would take a serious view of an employee so blatantly flouting a direct written instruction. We accept that it was the breach of the instruction that was Mr Brown's purpose in considering that that part of the disciplinary action warranted a sanction. We take into account the fact that the disciplinary action imposed was a very low level of discipline and that there was no restriction on the union's activities in general. Mr Brown had no problem with anyone else lobbying on behalf of the applicant through the union nor with other people not involved in housing or not in such a senior position taking a stance on the sale of council housing.

28 In considering the true purpose of both Mr Dethick and Mr Brown we have posed to ourselves the question whether, if the applicant had not been a union official supporting union policy, their actions would have been any different. The clear conclusion we reach is that, whether there was any union involvement or not they would have taken the same action, because they saw it as a breach of contract and a substantial conflict of interest."

Those being the findings of the Tribunal as to "purpose" they then set their conclusion out in these terms:

"29 The respondent has therefore satisfied us that the purpose of the action taken against the applicant was not for a purpose prohibited under Section 146. …"

20. Mr Buckwell having failed in his complaint, he appeals to this Tribunal contending that the decision reflected an error of law. Before us he has had the advantage of a carefully crafted submission put to us with skill by Mr Whitcombe.
21. Mr Whitcombe invites us to focus upon two passages in the Reasons that, as he contends, betray misdirections so as to vitiate the decision. The first passage is in paragraph 20, as already cited, and it is the sentence "even if the action is clearly done to prevent a person carrying out activities of a trade union, the Tribunal must consider the reason why the employer took that action to determine whether it was a prohibited reason". As to that, Mr Whitcombe submits as follows. He says that thereby the Tribunal are directing themselves that there are two stages to their approach to a judgment. By stage one, they are asking themselves, rhetorically, are we satisfied that the purpose of the Respondents was to prevent or deter Mr Buckwell from taking part in union activities at an inappropriate time; that is, that which is encompassed in the words "is clearly done to prevent".
22. By the second stage, submits Mr Whitcombe, the Tribunal are directing themselves that if the answer to the first part is "Yes" then they have to make a finding as to the reasons; that is, they have to make a finding as to the motivation behind that activity. He submits that there is only one stage to the judgment called for by section 146 and that is the first stage. Since the first stage question was, he would submit, answered in favour of Mr Buckwell, there then is a basis for the finding that the complaint is made out, there then is a basis for regarding the contrary judgment as vitiated by an error of law. His second point relates to paragraph 26. In that paragraph, as already cited in this judgment, he identifies what he would called a "but for" line of reasoning. He submits that that is to be impugned as peripheral to the quest that should be central to the judgment of the Employment Tribunal and that is as to "purpose".
23. For his part Mr Smail for the Council, now Respondents to this appeal, submits that the decision can be upheld as reflecting no misdirection as to law.
24. We turn to our own judgment. We have no hesitation in dismissing this appeal. Referring to paragraph 20 and the cited sentence, we are quite satisfied that by reading "is clearly done" as meaning "serves", sense can be made of an otherwise obscure sentence. With that reading the sentence flows on from the preceding sentence. Again, with that reading we have the Employment Tribunal directing itself that, if what the Respondents have done serves to prevent Mr Buckwell from carrying out trade union activities, then it must consider the reason, that is, the purpose with which it did that act so as to determine whether that purpose was prohibited by section 146. In short, reading the words in the fashion suggested, we have an unexceptional direction and one which accords with the last sentence of paragraph 26 and the actual approach of the Employment Tribunal in that paragraph and in paragraph 27.
25. Dealing with Mr Whitcombe's second point, we are quite satisfied that the use of the "but for" test in paragraph 28 did not reflect an error of law. It is plain to us that the Tribunal were using that test to cross check the conclusions that they had already expressed in the preceding paragraphs, an exercise that was plainly open to them as an industrial jury and, indeed, one that is to be commended if a judgment true to section 146 was to be achieved.
26. The appeal must fail.
27. However, before leaving this matter, there is something we wish to add. In the last paragraph of the Reasons the Employment Tribunal urged the parties to sit down and seek to agree as to how avoid these problems continuing to arise. To our surprise nothing seems to have been done pursuant to that pre-eminently sensible suggestion. Mr Buckwell's continuing dual role as a Housing Officer and a Branch Secretary of UNISON necessarily involves a conflict of interest that is pregnant with potential problems for the Council, for the Councillors, for the Union and for himself. The agenda for any meeting to sort out this situation will presumably centre upon the scope for moving Mr Buckwell away from activities that are directed so as to run contrary to his union's policy, but it could also include the terms of the Code of Conduct. As cited in the Reasons and quoted in this judgment, the last sentence is quite remarkable to this Tribunal and, in itself, raises section 146 implications and could well benefit from some careful constructive consideration.