United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOM LINDEN (of Counsel) Instructed By: Messrs McDermott, Will & Emery Solicitors 7 Bishopsgate London EC2N 3AQ
For the 2nd – 25th Respondents For the 26th – 52nd Respondents For the 40th Respondent For the 77th Respondent ALL OTHER RESPONDENTS NEITHER PRESENT NOR REPRESENTED.	MR JOHN LAW (of Counsel) Instructed By: Messrs Jack Thornley & Partners Solicitors 8 Warrington Street Ashton-under-Lyne OL6 6XP And Messrs Jordans Solicitors The Woolstapler 8 Cheapside Wakefield West Yorkshire WF1 2SD MR MICHAEL FORD (of Counsel) Instructed By: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE MR MATTHEWS IN PERSON MR MANNING IN PERSON


 


THE HONOURABLE MR JUSTICE ELIAS:

Introduction.

1. The appellant in this case is Balfour Kilpatrick Limited (BK). It employs over 3500 staff based at regional offices at construction sites throughout the United Kingdom. It provides electrical, mechanical and building services on large-scale construction projects. The respondents were all employed by the appellant at a construction site at the premises of Pfizer, a major pharmaceutical company, at Sandwich, Kent. The construction manager on site was Amec Construction Limited (Amec). BK was an electrical trade contractor, and its contract was with Pfizer.
2. On Friday 7 April 2000, the respondents were all dismissed by the appellant in circumstances where they were collectively refusing to work, for reasons we set out more fully below. They took unfair dismissal proceedings before the Employment Tribunal. Their primary contention was that they had been automatically unfairly dismissed contrary to sections 100(1)(c) and 100 (1)(d) of the Employment Rights Act 1996 (ERA), each of which constitutes an independent ground of an automatically unfair dismissal. There are four advantages of bringing their claims under these provisions: the tribunal has jurisdiction to hear the claims even if the employees do not have the requisite qualifying period of one year; and if they are beyond the relevant retiring age; the usual cap on unfair dismissal compensation is inapplicable to such dismissals: see section 124(1A) of the ERA; and the tribunal has jurisdiction to hear the claims even if it would otherwise not have by virtue of the claimants being involved in industrial action..
3. The employees also contended that even if they were not automatically unfairly dismissed, nevertheless their dismissals were in any event unfair under the general principles of unfair dismissal law. However, in order for the tribunal to have jurisdiction to hear this argument, it is necessary for the employees to have been employed for the requisite qualifying period. Moreover, a tribunal has no jurisdiction to hear such claims in any event if the employees at the relevant time were taking part in unofficial industrial action: see section 237 of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) or, in certain circumstances, official union action. It was conceded that the members of the TGWU were taking unofficial action and accordingly could not claim under the general unfair dismissal principles. However, there was an issue before the tribunal as to whether the members of the AEEU (and a small number of respondents who apparently belonged to no union) did so. BK contended that they did, but that was disputed.
4. The tribunal concluded that the dismissals had been effected contrary to section 101 (c) and were automatically unfair, although it did not sustain the claim that the dismissals were in breach of section 100(1)(d). Accordingly, all the employees succeeded in their claims. The tribunal further held that if it were wrong about that, the respondents who were members of the AEEU were indeed on official industrial action at the relevant time, and the employers conceded that in those circumstances the tribunal in this case did have jurisdiction to hear their general claims for unfair dismissal. (For reasons we give below, non-unionists also benefited from this conclusion in the same way.) They found that the dismissals of these workers were in any event unfair, even if they were wrong in finding those dismissals automatically unfair pursuant to section 100(1)(c). As we have indicated, however, that ruling does not assist those without the relevant qualifying period, and that was the overwhelming majority of the workforce. They can only succeed if they establish an automatically unfair dismissal.
5. The appellant appeals against the various rulings of the employment tribunal. It contends that the tribunal erred in law in finding a breach of section 100(1)(c). The claimants were not exercising rights protected by that provision, and even if they were, they were not dismissed for that reason. Further, it submits that the tribunal erred in concluding that there was official industrial action taking place at the time of dismissal in respect of the AEEU respondents. It submits that the tribunal ought to have found that it had no jurisdiction to hear the general unfair dismissal claims.

The circumstances giving rise to the dismissals.

6. The Pfizer site was a very large construction site situated on low-lying marshy ground. It is liable to flooding and indeed the buildings on the site were constructed above ground on pillars to mitigate that risk. In April 2000, the respondents were engaged in electrical works on the site at which buildings were in the process of being constructed. BK had around 240 electricians on site including the respondents. There were also other contractors on the same site so that in total there were over 1000 people working there. The relevant BK work force was all male. BK had on the site various portakabins where work clothes were kept and where the employees prepared themselves for work. They were working at various locations throughout the site.
7. The BK portakabins were just some of a number of temporary buildings on site. There was, for example, a large canteen used by all the workers on the site, including the BK workers. In each of the BK portakabins there were one or two weakly powered convector heaters. Not all of them were working, however, and there was not a sufficient level of heat to allow damp clothing to dry over night. Furthermore, working clothes and footwear were kept in lockers in the portakabins but there was insufficient air circulating there properly to dry clothes. The relevant items of clothing include safety boots, hardhat and a high visibility vest. In addition the men were all issued with overalls, which the tribunal considered constituted protective equipment.
8. There is no doubt that the working conditions on site were far from satisfactory even prior to the incidents which resulted in the dismissal. Concerns about the state of the site had been expressed in November/December 1999. These concerns related to what was alleged to be excessive mud and water on site, tripping hazards, and inadequate lighting. The particular events leading to the dismissal of the applicants commenced on 4 April 2000. This was a day of exceptionally ferocious weather. There was continuous heavy rain from 3.am until 11.am and then continuous moderate rain from noon until 4.pm. Over 2 inches of rain fell between 3.am and midday. There was also a moderate wind and the temperature fell dramatically from 6.5 degrees centigrade at 3.am to 3.6 at 1.pm. This exceptionally heavy rainfall produced wide areas of standing water on the marshy ground around the site. The men inevitably had to walk from place to place on the site, in many cases through mud and water. For example, they would need to travel across the site to go to the canteen for their break and to visit the toilets or the stores. In addition, a few of the men were working in areas where there was standing water underfoot.
9. A particular danger at this site was the risk of Weil's disease. This is a serious water borne infection carried in rat urine. Rats were present on the site and there were indeed warning notices alerting workers to the dangers of this disease. The tribunal found that it was reasonable for the men to be concerned that the increased levels of standing water would increase their risk of exposure to this disease. There were also concerns about the dangers of working with electricity in these wet conditions.
10. At 12.30 when the men had their lunch break they expressed widespread and spontaneous concerns about the adverse effects of these weather conditions. There were complaints about the fact that their boots and overalls were soaking wet, and also fears were expressed about the risk of working in wet conditions such as the obvious dangers of slipping and tripping hazards, as well as the particular risks that we have already identified. In view of these they resolved to approach management to let them take the afternoon off in order to give them time to dry out.
11. The men decided that Mr. Campbell, who was the Union representative of the AEEU, and Mr. Thompson who assumed the role of spokesperson for the TGWU workers on site but not an authorised representative, should approach management with their concerns. The AEEU is a recognised trade union but the TGWU is not. Mr. Campbell and Mr. Thompson went to see Mr. Pearce, the construction manager of BK, who in turn took them to see Mr. Hill who was the projects director. They asked for the men to be released for the rest of the day with pay because of the adverse conditions and their wet clothing and boots. They requested that wellington boots should be provided because of the state of the men's safety boots, which they alleged, were inadequate for the waterlogged conditions on site. The tribunal found that Mr. Hill rejected the requests rather perfunctorily. Earlier experiences of industrial relations difficulties cause him to be suspicious of the request, and as a consequence the tribunal found he did not investigate their merits but rejected them on the basis the men were simply attempting to obtain money without work.
12. When Mr. Campbell and Mr Thompson relayed the outcome of this discussion, the men were less than pleased. The idea of going home was voiced by one or two people and the men adopted that suggestion. All the men left the site by about 1.20 p.m.
13. Notwithstanding his unambiguous rejection of the men's claim, after the men had left, Mr. Hill sent Mr. Pearce to walk around the site. He visited some- but only a limited number -of areas. He did not examine the overalls or boots or high visibility vests of the respondents. He did, however, talk to the Amec safety representative, and he resolved to improve the drying facilities in the portakabins.
14. Meanwhile, at about the same time as the union representatives were seeing Mr Hill, the two safety representatives, Mr Hogben and Mr Gamble, went to see the company's safety officer, Mr Heaney. Unfortunately, he was not available as he was away for the week. They raised their concerns with the Amec safety officer who initially said that he would help but subsequently indicated that he did not want to be involved. This was after he had seen Mr Pearce.
15. The men arrive at work on Wednesday 5 April but still the clothing and boots were very wet. They congregated in the canteen and resolved not to go back to work. Again, Mr Campbell and Mr. Thompson went to see Mr. Hill and voiced the men's concerns. They also drew his attention to Regulations 23 and 24 of the Work Place Health and Safety Regulations, which set out the requirements for the accommodation for clothing, and changing facilities, which they believed applied to this site. They took a Health and Safety Executive information sheet which includes the provision that every site should have arrangements for ensuring that wet clothing can be properly dried. Again, Mr. Campbell and Mr. Thompson asked that the men should be paid for the previous afternoon when they felt compelled to leave early. This was rejected. The message from the men had not, however, fallen on deaf ears. Mr. Hill did indeed instruct Mr. Pearce urgently to improve the BK drying facilities. But for some inexplicable reason, the men were not told that these steps were being taken by management.
16. The men did not work on Wednesday 5 nor again on Thursday 6, although they attended the site in the morning. By Friday 7 April, when the men again clocked into work, the clothing and boots had largely dried, but some boots were still damp and some clothing, particularly overalls, were now smelling because of damp and mildew. The men congregated in the canteen and again refused to go back to work.
17. Meanwhile, on the Wednesday evening or Thursday morning Mr. Hill and Mr. Hay, who was the unit director of the BK, had discussions with BK's personnel department and they resolved that if the men failed to return to work on Friday 7 April they would all be dismissed. If on the other hand they returned, it was decided that they would all be issued with a written disciplinary warning. At no time were the men given an ultimatum that if they failed to return to work they would all be dismissed.
18. As a consequence, when the men went home on Friday at 1.pm, they were all given letters of dismissal, together with an application form for re-employment. They were also sent dismissal letters and applications for re-employment to their home addresses by first class post. These letters were sent not only to the men working at the relevant time but also those who were sick or on holiday or otherwise had an authorised reason for their absence. The entire workforce of 240 electricians were dismissed. Attempts were made over the weekend and at the beginning of the following week to seek to persuade management to change its mind, but it refused to do so. Ironically over the weekend beginning on 8 April, contractors were instructed by BK to install benches and hooks in the BK drying rooms at the cost of almost £4,000 and in addition more heaters were installed at the drying room. Some of the men were subsequently re-employed.
19. There is one further matter which needs to be considered in this resume of the facts. During the course of this dispute Mr. Boyd, the AEEU official responsible for the BK men, was unfortunately away at a conference. He was contacted on Wednesday afternoon about the situation on site. He spoke both to Mr. Hill and Mr Campbell. He was concerned about the union's potential liability with regard to what appeared at that stage to be official industrial action since it had been endorsed by Mr Campbell. In order to protect the union's position, he told Mr Campbell to instruct the men to return to work. In addition the union faxed a letter to BK repudiating the action taken by the men. This was passed on by Mr. Pearce to Mr. Campbell. He read out the letter of repudiation to the men in the canteen. In addition, Mr Hill arranged for the union's repudiation letter to be put up by the clocking station. However, the tribunal found that this was not a place where the men would tend to pause to read a notice: they would be in a queue clocking in or out and they would not in practice delay their colleagues while reading a notice.

The relevant legislation.

20. Before considering the conclusions of the tribunal, it is necessary to set out the relevant legislative provisions which bear on the issues. We will first consider those pertinent to the automatically unfair dismissal claims, and then the provisions bearing on the question whether the men were on official or unofficial strike at the relevant time.
21. The genesis of section 100 is to be found in the European Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. Article 1(2) provides that to this end the Directive

"contains general principles concerning the prevention of occupational risks, protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives….."

22. The Directive sets out a series of employer's obligations in section II and workers obligations in section III. Under Article 7 the employer is obliged to designate one or more workers to carry out activities related to protection and prevention of occupational risks for the undertaking, to ensure that they have the necessary capability and means to carry out that work, and to be given adequate time to enable those obligations to be fulfilled. Article 8(4) deals amongst other matters with the evacuation of workers facing serious and imminent danger. It is as follows:

"Workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and / or a dangerous area may not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/or practices."

23. Article 10 requires the employer to provide workers and / or their representatives with information about health and safety risks and preventive measures taken to seek to ameliorate or eliminate those risks. Article 11 deals with consultation and participation of workers. There is a duty to consult and allow workers and / or their representatives to take part in discussions on all questions relating to health and safety at work. Article 11(4) provides that workers and their representatives should not be placed at a disadvantage because of exercising their respective rights conferred upon them by the directive.
24. The obligations cast on workers are found in Article 13. Article 13(2)(d) provides in terms that workers must

"immediately inform the employer and/or the workers with specific responsibility for the safety and health of workers of any work situation they have reasonable grounds for considering represents a serious and immediate danger to safety and health and of any shortcomings in the protection arrangements."

25. Section 100 is only one of a number of provisions which together implement the directive. It does, however, implement the employment protection aspects of the directive. It is mirrored by a very similar provision in section 44 of the ERA which gives protection to workers and their representatives from detrimental action short of dismissal. Other relevant rules which have the effect of incorporating other aspects of the Directive are found in the Health and Safety at Work Regulations 1999 and Health and Safety (Consultation with Employees) 1996. Article 14 (2) of the 1999 Regulations specifically implements Article 13(2) of the Directive set out above. It does so in substantially similar terms, although it does expressly provide that the duty to inform only arises if the matter has not been previously reported to the employer.
26. Section 100 of the Employment Rights Act 1996 provides that it is unlawful to dismiss workers in certain circumstances for exercising health and safety rights. Safety officers and safety representatives are protected from dismissal for carrying out their functions. The material provisions bearing on this case are as follows in subsection (1):

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that -

...

(c) being an employee at a place where -

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

27. By section 105(3) a dismissal is also unfair if there is a redundancy and the reason why the employee was selected for dismissal was one of those specified in section 100(1).
28. In order adequately to understand the part of the appeal relating to the finding that the AEEU men were not on unofficial strike at the time of their dismissals, it is necessary to refer to certain provisions of the Trade Union Labour Relations (Consolidation) Act 1992.
29. Section 237 deals with the dismissal of those taking part in unofficial industrial action. The material parts are as follows:

"(1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action."

Subsection (1A) provides for some exceptions to this bar and its effect is that an employee even if on unofficial strike is entitled to complain of dismissals effected in breach of section 100. They cannot however complain under the general unfair dismissal principles.

30. It becomes crucial to distinguish between unofficial industrial action and action which is not unofficial (and which we will call "official" although that term is not actually employed in the legislation.). The definition of unfair industrial action is found in section 237(2) and (3):

"(2) A strike or other industrial action is unofficial in relation to an employee unless-

(a) he is a member of a trade union and the action is authorised or endorsed by that union, or

(b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed

Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(3) The provisions of section 20(2) apply for the purposes of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union."

31. Subsection 4 then provides that whether industrial action is to be considered to be unofficial or not is to be determined at the time of dismissal. It adds this:

"Provided that, where an act is repudiated as mentioned in section 21, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place."

Accordingly, a repudiation does not take immediate effect; those taking the industrial action have an opportunity to decide how to respond to the union's repudiation of their action until the end of the following working day.

32. Subsection 5 defines "working day" as follows:

"… a "working day" means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971."

Subsection 5 also provides that where the employee's contract is terminated without notice (as in this case) the time of dismissal will be the time when the termination takes effect. It is common ground that in this case this was shortly after work finished on the Friday.

33. It will be plain from subsection 2 that a strike or other industrial action may be official in relation to certain employees but unofficial in relation to others. One union might have authorised or endorsed the action and the other might not. If a person is a member of a union which has not authorised or endorsed the strike, or has effectively repudiated action taken in its name by the date of dismissal, then in relation to that union member the strike will be unofficial. It will however, remain official both for members of a trade union which has authorised or endorsed the action and indeed for any non-members of a trade union who are participating in the action. To that extent the position of non-members may be more favourable than that of some union members (such as the TGWU members in this case.)
34. In order to determine whether action has been authorised or endorsed by a trade union it is necessary to consider section 20(2) of the 1992 Act. This is as follows:

"An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed-

(a) by any person empowered by the rules to do, authorise or endorse acts of the kind in question, or

(b) by the principal executive committee or the president or general secretary, or

(c) by any other committee of the union or any other official of the union (whether employed by it or not)."

35. It was conceded in this case before the tribunal that Mr Campbell was an official of the union within the meaning of section 20(2) but that Mr Thompson was not.
36. Section 21 then identifies circumstances where the union may repudiate acts which have ostensibly been taken on its behalf. In particular, it enables a union to repudiate actions taken by officials as defined by section 20(2)(c). It is as follows:

"An act shall not be taken to have been authorised or endorsed by a trade union by virtue only of paragraph (c) of section 20(2) if it was repudiated by the executive, president or general secretary as soon as reasonably practicable after coming to the knowledge of any of them."

37. Subsections 2 to 4 then identify the steps in which a union needs to take effectively to repudiate the action taken by the official. They are as follows:

"(2) Where an act is repudiated -

(a) written notice of the repudiation must be given to the committee or official in question, without delay, and

(b) the union must do its best to give individual written notice of the fact and date of repudiation, without delay -

(i) to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act, and

(ii)to the employer of every such member.

(3) The notice given to members in accordance with paragraph (b)(i) of subsection (2) must contain the following statement-

'Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal.'

(4) If subsection (2) or (3) is not complied with, the repudiation shall be treated as ineffective."

38. Sub section 4 makes it plain that compliance with subsections 2 and 3 are conditions precedent to an effective repudiation. The consequences of a repudiation is that the union will not be liable in damages for the loss that is suffered by the employer as a consequence of the action. The union effectively washes its hands of the matter. But as we have seen, by section 237(1) the employer is then at liberty to dismiss any employee who is participating in the action once it is become unofficial (subject to certain exceptions, including dismissals for health and safety reasons).
39. Where the industrial action is official, which is to say where it has been authorised or endorsed and not been effectively repudiated, then the rules relating to unfair dismissal are different. The position is regulated by section 238. Effectively the tribunal will have jurisdiction to hear unfair dismissal claims only if the employer dismisses some taking the industrial action but not others or if he selectively offers reengagement in certain circumstances. The employers accept that they did so act and that if the strike was not unofficial by the time of dismissal then the tribunal was right to exercise jurisdiction. Again, even if the tribunal does not have jurisdiction under general unfair dismissal law it does have jurisdiction to hear alleged automatically unfair dismissals effected in breach of section 100.

Tribunal's conclusions

40. With that somewhat lengthy excursus into the relevant legislation, we now turn to consider the relevant conclusions of the tribunal. First, the tribunal's conclusions in relation to their finding that there was a dismissal pursuant to section 100(c) is considered.

The findings of automatically unfair dismissal.

41. The tribunal dealt at some length of the question whether the conduct of the respondents fell within the terms of section 100(1)(c). They concluded that they did. Their relevant findings were as follows:

"63. The matters that the Applicant brought to the Respondent's attention from the afternoon of Tuesday 4^th April until they were dismissed on Friday 7^th April were hazardous conditions on site due to the exceptionally bad weather conditions on Tuesday, soaking wet clothing and boots on Tuesday, the continuing wetness of their clothing and boots on subsequent days, and the inadequate drying facilities provided by BK. In our view these were all circumstances connected with their work which they reasonably believed were harmful or potentially harmful to health or safety. We are unable to accept Mr Bowers submission that the concerns raised about wet or damp clothing relate only to an employee's welfare, as opposed to their health or safety, especially when the clothing and boots are personal protective equipment.

64. The Applicants' concerns were initially brought to the attention of the Respondent by Mr Campbell and Mr Thompson and not by Mr Gamble or Mr Hogben. In our view it was not reasonably practicable to raise the issue on Tuesday through Mr Gamble or Mr Hogben because of the urgency of the problems posed by the extreme weather conditions, and the fact that the request made on behalf of the Applicants as a consequence of the appalling conditions was for the men to be allowed to go home, coupled with a request that the men be paid for that afternoon. In our view, given the normal channels of communications of industrial relations issues in the Respondent's industry, this was the type of issue that was proper to be raised by a shop steward rather than a safety representative.

65. Once the channel of communication had been opened between Mr Campbell and Mr Thomson and BK's management, it was entirely reasonable to continue with that channel of communication. At no stage did Mr Hill or Mr Hay ask to speak Mr Gamble or Mr Hogben, neither did they seek to involve Mr Heaney in discussions about the issues. As we have already mentioned, Mr Gamble and Mr Hogben did try unsuccessfully to speak to Mr Heaney themselves. Mr Heaney's unavailability, and the fact that Mr Hill and Mr Hay made no objection to Mr Campbell and Mr Thomson being the channel of communication with the men, meant that it continued to be not reasonably practicable for the Applicants to raise the matters through Mr Hogben or Mr Gamble.

...

67. In their meeting with Mr Campbell and Mr Thomson, Mr Hill and Mr Hay made very clear that they did not accept that any of the circumstances raised with them were reasonable causes of concern. Mr Hill made clear that he did not concede either that the men were too wet to work on Tuesday, or that their boots and clothing remained unfit to wear thereafter, or that the drying facilities were inadequate. When Mr Hill and Mr Hay made clear that they were not making any concessions to the men's concerns, but insisted that all their concerns be put into procedure, in our view it was reasonable of the Applicants to sit in the canteen in order to bring to the Respondent's attention the importance to them of the circumstances that they reasonably believed were harmful or potentially harmful to health or safety. In our view sitting in the canteen was a reasonable means of so doing, because the Applicants were on site, and ready and available to work. They were immediately available for dialogue with management either directly or through Mr Campbell and Mr Thomson."

42. Having so concluded, they went on to consider whether the respondents had been dismissed because of the action they had taken. They held that was the reason for dismissal. The reasoning was contained in paragraph 72 which is as follows:

"Mr Hay had decided that if the men returned to work on Friday none of them would be dismissed. Instead they would receive a written warning. We conclude that the reason for the dismissal of the Applicants was their failure to return to work on Friday 7^th April. We have already decided that the reason why the Applicants did not return to work on Friday was because they were taking action pursuant to section 100(1)(c). In our view it follows that the reason for the dismissals was because of the action of the Applicants were taking pursuant to section 100(1)(c). As we have found that this was the reason for the dismissal of all the Applicants, we conclude that all the Applicants were unfairly dismissed."

43. The tribunal did, however, find that the conduct did not fall within the terms of section 100(1)(d) as the respondents were contending. They concluded that there was indeed serious and imminent danger on the Tuesday, or at least that was what the respondents reasonably believed, but that by the Friday the weather had improved to such an extent that the circumstances of danger no longer existed. There is no appeal against that finding.

Unfair dismissal in industrial action

44. As we have indicted, it was conceded before the employment tribunal that the workers who were members of the TGWU were participating in unofficial industrial action. As a consequence, they had no right to complain of unfair dismissal by the virtue of section 237 (1), and they could only succeed if they could bring themselves within the scope of section 100. By contrast the position was different for the members of the AEEU because the action had originally be authorised or endorsed by Mr. Campbell, the AEEU shop steward. The issue therefore, was whether there had been an effective repudiation of that initial authorisation. The tribunal concluded that the action had not been repudiated. Their reasons for that finding are as follows (para 74):

"Mr Ford submitted that the union had not in fact repudiated the official action because it had failed to comply with section 21(2)(b)(i), which provides that where an act is repudiated "the union must do its best to give individual written notice of the fact and date of repudiation, without delay to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act…" We accept Mr Ford's submission. The section requires the union to "do its best" to deliver an individual written notice of the fact and date of repudiation to every relevant individual member of the union. The union did not give any such individual written notice. In our view the union did not do its best to give such individual notice. There was no reason why Mr Cowap or one of his colleagues could not have attended the site to distribute individual written notices to each of the men as they clocked out on Thursday afternoon, or clocked in or out on Friday. Alternatively, the union could have instructed Mr Campbell to photocopy the letter of repudiation and distribute copies to each of the men. Mr Cowap gave no such instruction to Mr Campbell. Another possibility was that an officer of the union could have asked Mr Hill to photocopy the repudiation letter and distribute it to each of the men individually. No such request was made. We conclude that the action was not repudiated by the AEEU, so that it remained an official strike or other industrial action up to and including the time when the men were dismissed."

45. The tribunal then went on to consider what the position was if they were wrong in that conclusion. As we have indicated, official industrial action does not become unofficial until "end of the next working day after the day on which the repudiation takes place." It was common ground that the repudiation, had it been effective, was effective on Thursday 6. The action would not therefore cease to become official until the end of the working day following. BK contended that this meant the end of that part of the day when work is performed. Since the work had finished at 1pm, and they had been dismissed very shortly after that as they were going home, they had been dismissed after the official strike had ceased and when the men were taking part in unofficial action. The contrary view was that working day meant the entire day of 24 hours, so that the official strike did not end until midnight on Friday 7 April. If that were the correct analysis, then of course they were dismissed during that Friday when they were still taking part in an official industrial action. The tribunal preferred the latter analysis. It said this (para.79):

"… In our view it is clears that the definition of "working day" serves to distinguish those days which count as "working days", from those days which do not count as working days. The definition means that all days are working days apart from Saturdays or Sundays, and the other days which are stated not to be working days. The words used in the definition i.e. "a working day means any day…." (our emphasis) show that a working day is a day. The word "day" must in our view be given its ordinary meaning i.e. a period of 24 hours commencing at midnight. We are fortified in our view by contrasting the definition or "working day" in Section 237(5) with the definition of "working hours" in Section 246. That definition clearly states that "working hours" means any time when a person is required to be at work. As in our view the definition of "working day" is unambiguous, we did not find it necessary to refer to the extract from Hansard which Mr Ford asked us to consider if we had found the definition ambiguous."

46. The conclusion that the AEEU members, and those who were members of no union, could take proceedings for unfair dismissal would not of itself establish that the dismissals were unfair. In a case such as this, where there are selective offers of re-engagement, the approach to determining whether or not the dismissal is fair is set out in section 239(3). This provides that the reason for not offering reengagement will be treated as the reason for dismissal. In this case as the Respondent failed to show any potentially fair reason for the dismissals of those employees pursuant to Section 98 (1) ERA 1996, the tribunal rightly concluded that it was bound to find that all those dismissals were unfair. There is no appeal against that specific finding.

The grounds of appeal

47. The appellant attacks virtually every material finding of the employment tribunal. In analysing the grounds of appeal, it is helpful to set out the conditions, which need to be complied with in order for section 100(1)(c) to come into play. First, it is necessary to show that it was not reasonably practicable for the employee to raise the health and safety matters through the safety representative or safety committee. Second, he must have brought to the employer's attention by reasonable means the circumstances that he reasonably believes are harmful or potentially harmful to health or safety. Third, the reason for his dismissal or at least the principal reason if there is more than one, must be the fact the employee was exercising his rights. BK contends the tribunal erred in relation to each of these conditions.
48. As to the first, it contends that the tribunal did not properly ask itself whether it was reasonably practicable to act through the health and safety representatives or a safety committee; rather it focused on the question whether it was reasonable for the AEEU shop steward Mr. Campbell and the TGWU member Mr. Thompson, rather than the safety representatives to raise these specified matters. That, submits the appellant, is asking the wrong question and involves a misdirection in law. Further, the appellant submitted that on the evidence it was simply not possible to conclude that it was not reasonably practicable for the matters to be raised through Mr. Hogben or Mr. Gamble, the safety representatives. In that context, Mr. Linden, counsel for the appellants, submitted that the tribunal took into account certain irrelevant matters when considering whether or not it was reasonably practicable. For example, it referred to the fact that Mr. Heany was unavailable to meet the safety representatives when matters could and frequently had been raised with Mr. Hill as the channel of communication.
49. Second, the appellant submits that the means used by the employees were not reasonable means within the meaning of section 100(1)(c). There are two elements to this argument. The first is that unlawful industrial action cannot constitute reasonable means for the purposes of section 100(1)(c). The only legitimate time, it is said, when employees may legitimately refuse to work on health and safety grounds and receive the protection from consequential dismissal is where the conditions of section 100(1)(d) are met. But they were not met here, as the tribunal found. Second, it was contended that these could not be legitimate means for drawing the health and safety matters to the attention to the employer, because the attention could be, and indeed had been, drawn to these matters by simply orally communicating the concerns of the men. The workers here were not bringing to the employers' attention the circumstances which they workers believed to be harmful or potentially harmful. He plainly knew about this by the Friday having received a deputation about the concerns earlier in the week. Rather they were seeking to impress upon the employer the gravity of the matter and to compel him to do something about it. Finally, it is again said that there was no proper basis for saying that the means adopted were reasonable.
50. The employers also submit that in relation to the third matter the tribunal erred in finding that the reason for the dismissal was participation in activities falling within section 100(1)(c). They submitted that the true reason was that the employers genuinely considered –whether rightly or wrongly is beside the point- that this was an attempt to extract pay for no work. They did not believe that it was primarily a health and safety issue at all. The appellants submit that if this was uppermost in the minds of the employer as the evidence plainly demonstrated, then the tribunal was not justified in concluding that the reason fell within the term of section 100(1)(c).
51. In connection with the question whether the strike had been effectively repudiated, which was central to the general unfair dismissal claim, it was alleged that the tribunal had wrongly concluded that the strike being conducted by AEEU members was not unofficial. More specifically, the tribunal had erred in concluding that the union had not done its best in the circumstances to give individual written notices. It was further contended that the construction of the working day given by the tribunal was wrong as a matter of law, and that properly construed it meant the time when the workers ceased to work in a particular day. Accordingly, there had been an effective repudiation by the time of dismissal.
52. The respondents represented by Mr. Ford and Mr. Law, both contend that the tribunal's conclusions were unassailable. They submit that it is wholly in accordance with the statutory language of section 100(1)(c) to treat the refusal to return to work as amounting to drawing attention to matters harmful to health and safety. These were findings of fact with which this Tribunal cannot interfere provided there were no proper evidential grounds for their conclusions. They further contend that the appellants' analysis of the reason for dismissal adopts a far to narrow assessment of the grounds for dismissing, and would provide inadequate protection for workers contrary to the terms of the Directive. Finally, they submitted that the tribunal was plainly right as a matter of construction of the relevant provisions to conclude that there had been no effective repudiation, and were equally correct in concluding that even if there had, it was not effective by the time the dismissals took effect

We will consider these issues in turn.

Was it reasonably practicable to communicate through the safety representatives?

53. Mr. Linden correctly noted that section 100 (1) (c) requires that it is only if there is no safety representative or safety committee, or if it is not practicable for the employee to raise matters by those means, that he can use alternative means to bring to the employers attention health and safety concerns. He submits with considerable force that that was not the question the tribunal asked itself. It did not consider whether it was reasonably practicable to use a safety representative; rather it asked whether it was reasonable for the men to use the representatives Mr. Campbell and Mr. Thompson. It is plain beyond doubt, he says, that it was practicable to use the safety representatives as the channel of communication. Indeed, they were aware of the concerns of the men at the material time, and indeed they did seek to approach Mr. Heany, the company's safety officer, although he was not present. They could just have well approached Mr. Hill. We accept that Mr. Linden is right about that. It is impossible in our view to suggest otherwise. It may as a tribunal found to have been reasonable – perhaps even more reasonable – to express their concerns to the union representatives and the safety representatives. But that is not on the face of it what the section requires should be done.
54. However, in our view that is not the end of the matter. There is something highly artificial about a contention that when drawing matters of serious and imminent concern to the employer, the employees must concern themselves with the appropriate route whereby that information is conveyed. In the practical world, we cannot believe that any employer would criticise an employee for informing him of imminent health and safety risks, whether directly or through any other means of communication. The important thing is that the message is communicated quickly and succinctly. Moreover, in Article 13(2)(d) of the Directive, which we have reproduced above (para 24), it is provided in terms that workers must "immediately inform the employer" of serious and immediate dangers to health and safety. If and in so far as there is a conflict between the Directive and section 100(1)(c) then we must so far as we can construe the section compatibly with the Directive. We consider that there is no difficulty in doing that: in our view it would be possible to insert at the end of paragraph (e) the words "or to communicate these circumstances by any appropriate means to the employer". That would in turn restrict, in our view, the scope of 100(1)(c). It may be there are better ways of achieving the same result. What we are clear about, however, is that an employee exercising his obligations under Article 13 of the Directive- and we emphasise that they are obligations- cannot conceivably be lawfully dismissed under English Law on that account.
55. Accordingly, although we accept that the tribunal did not ask the right question in relation to section 100(1)(c), we are satisfied that nonetheless the employees were entitled to raise their concerns through the union representatives. Mr. Linden submitted that even if that were so on the first day, they were not justified in adopting the same approach in relation to action on the Friday, by which time the employers were aware of the men's concerns. By that stage, on the tribunal's own analysis of the facts, there was no longer any serious or imminent danger. Article 13(2)(d) of the Directive is not then in play. Therefore, he said, it was necessary under section 100(1)(c) for the channel of the safety representatives to be used.
56. We confess that we find this a most unattractive argument; it bears no relation to reality. In our view, in circumstances where the employers had continued without protest to discuss these matters directly with the union representatives, then they should be treated as representatives of workers on matters of health and safety " by reason of being acknowledged as such by the employer" as to defined by section 100(1)(b)(ii). It would be wholly unjust to allow the employers argue to the contrary. Accordingly, we do not find the defendants to have been outwith the scope of section 100 on this ground.

Were the matters being brought to employer's attention?

57. The argument here is that it is impossible to say that taking industrial action amounts to bringing to the employer's attention the potentially harmful risks to health and safety. The attention was drawn to the employer through the channel of the union representatives, and the taking of concerted and collected action did not in any way constitute the drawing attention of the concerns at all. What it was doing was drawing attention to the seriousness to which the workers viewed these matters, coupled with a desire to seek to compel the employers to do something about them. Mr. Linden also submitted that it would be absurd to say that taking industrial action could conceivably be reasonable means within the meaning of section 100(1)(c), particularly when it constituted unlawful industrial action under domestic law. Moreover, it would be conflating the distinct provisions in sub sections (c) and (d) to say that action taken under (d) could also fall within (c).
58. Mr. Ford, with whose arguments on this point Mr. Law concurred, contended that the phrase "brought to his employer's attention" was wide and should not be given any artificially restricted interpretation. He submitted that it could extend to actions as well as words and that there was no reason in principle why industrial action, even unlawful industrial action, could not amount to appropriate means of communicating the information. He realistically accepted, however, that his submission inevitably rested on the premise that the concept of drawing to the attention of the employer in subsection (c) included not only drawing the fact of the health and safety concerns to the employer's attention, but also the gravity of those concerns as perceived by the employees. Indeed, he accepted that even the gravity of their concerns could be orally communicated to the employer, but in appropriate circumstances, of which this was one, he submitted that the employees were entitled to bring the seriousness of the matter more forcefully to the employer's attention.
59. We accept the appellant's submissions on this point. It seems to us that even with a liberal construction of the subsection, it is not possible to say that taking industrial action could be reasonable means of bring the employer's attention to health and safety concerns. Nor could it amount to "informing" within the meaning of Article 13(2)(g) of the Directive. We accept that there may be circumstances where communication can be by action rather than words, although this must be exceptional. For example, an employee may point out a hazard to his employer who is some distance away from him. We would also accept that the fact that the matter falls under one provision of section 100 would not in itself preclude it from being protected by another. In our judgment, however, the concept of informing the employer cannot extend to taking industrial action to impress upon him the gravity of the issue as perceived by the employees. That is, in truth, part of the process of industrial warfare when the attempted negotiations to resolve the impasse have broken down.
60. That is not to say that employees may not be perfectly justified in resolving to take industrial action in an appropriate case to seek to put pressure on the employer to concede to what they consider to be wholly reasonable and justified health and safety concerns. However, as the law stands, such action cannot lawfully be taken without a ballot, save where the action is taken by employees together who are exercising their rights in section 100(1)(d). We fully appreciate that in this case the workers were deeply concerned that if the matter went through the usual procedural channels, as the employer was asserting should be the case, then it could take many months for the issue to be resolved. That was hardly a satisfactory resolution for a short-term problem generating real health and safety concerns. But we cannot remedy the weakness of the law in other respects to protect action by these employees by giving what, in our judgment, would be a wholly artificial and unrealistic construction of subsection (c).
61. The result is, therefore, that these workers are not protected under the automatically unfair provisions of section 100(1)(c). Although it is somewhat an artificial and hypothetical exercise, we would add that had we concluded, contrary to Mr Linden's submissions, that the action of the workforce in this case did fall within the scope of section 100(1)(d), then we would also have found that it was reasonable in all the circumstances for them to have impressed their views upon the employer in the way in which they did.

What was the reason for dismissal?

62. The appellant contended that the tribunal made a fundamental error when analysing the reasons for dismissal in this case. It concluded that the action of the employees was protected by section 100(1)(c). It then stated, in paragraph 72 of its reasons (set out at para. 42 above) that since the men have been dismissed for failing to return to work then it followed that the reason for dismissals was because they were taking action pursuant to section 100(1)(c). Mr. Linden submitted that this is confusing two quite distinct matters. The first is whether the employees were taking the protective action; the second was the totally separate question of whether that was the reason for the employer's dismissal. He referred the tribunal to the well-known dictum of Cairns L.J. in Abernethy v Mott Hay and Anderson [1974] ICR 323 when he said:

"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee."

63. Mr Linden submitted that it was common ground before the Employment Tribunal that the uppermost in the employers mind when it resolved to dismiss the employees was that Mr. Hill and Mr. Hay considered that the employees were taking action in an attempt to force payment for days when they had not been working. The employers objected to what they saw as a campaign of unofficial industrial action over a period of time which were creating unreasonable disruption and was contrary to agreed procedures. Mr. Linden accepted that if the employers were dismissing for a set of facts which as a matter of law constituted protected action, then it would be no defence to say that he did not appreciate what the legal position was. In other words, ignorance of the law is no excuse. But he says that is not this position: here the employer dismissed for a reason which was quite distinct from the protected action at all.
64. We accept that looking at the reason for dismissal, it is necessary to ask why a person acted as he did. That was the test adopted by Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 paragraph 29. That case concerned the construction of the victimisation provisions in the Race Relations Act, where the relevant language is "by reason that". But we think nothing material turns on that. As Lord Nicholls also pointed out in determining what the reason was, the tribunal is determining an issue of fact.
65. We agree with Mr Linden that it follows that if the employer has no knowledge of the protected act, (possibly unless he has constructed knowledge), or if he dismisses for a reason quite distinct from the protected act, then the automatically unfair dismissal provisions will not bite. However, we do not accept that this case reflects either of those situations. Here the employees were plainly being dismissed for refusing to work on the Friday. This is clear from the fact that had they worked, they would have not been dismissed. We accept, of course, it is not appropriate in this context to apply "but for" test. And accordingly the employees are not simply entitled to say that they must fall within the terms of the sub section because they would not have been dismissed but for taking the action they did. However, the employer here was aware of the employees' grievance. He was effectively saying that he was indifferent to the reason why they were taking refusing to work: the mere fact they were failing to work was the reason why they were being dismissed, albeit that this action was to be seen against a backcloth of disruptive activities, as the employer perceived them to be. The employees would have been dismissed, said Mr. Linden, whatever the reason for their taking this time off. The fact that it was for a protected reason (and of course we assume that it was for the purpose of this argument) is immaterial and did not affect the employer's reasons.
66. We think that this argument fails. It does not establish that the employer is not dismissing for the protected action, but rather that he would in addition also dismiss for other absences where the employees were not pursuing the protected purpose. It seems to us that he is still dismissing the workforce because they are taking the protected action even although he is not concerned about that fact and would dismiss them for absences for a host of other reasons. The point was put with his customary succinctness by Lord Hoffmann in the Khan case. He was there dealing with the question whether an employee was being victimised by virtue of not being given a reference on the grounds that he had instituted proceedings against his employer. In the course of his judgment he commented (para 50):

"The requirement that doing the protected act must have been reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that, although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way."

67. In our view this was the position here. The fact that the employer was dismissing because of the failure to return to work and was indifferent to the reason why the men were not at work is immaterial. He knew what the employees were asserting the reason to be. Had we found that to have been a protected reason then we would have concluded that the dismissals were for that reason. We consider that the tribunal were right on this aspect of the case. Moreover, we consider it likely that an employer would be equally liable if he had the opportunity to find out the reason for the absence and chosen not to take it. This ought, in our view, to be the position in order to give effective implementation of the Directive. However, we did not hear argument on this point and we do not have to determine it in this case.

Unfair dismissal and the unofficial strike.

68. We turn to consider the alternative ground of appeal. It was submitted that the Employment Tribunal erred in its analysis of the effect of section 237 of TULRCA. Put shortly, the employers submit that although the action of the AEEU members had originally been endorsed by an official of the union, namely, Mr Campbell, that action had been effectively repudiated by the time of dismissal. As we have seen, in order to constitute repudiation it is necessary that there is compliance with both section 21(2) and 21(3) of TULRCA 1992. The tribunal found that there had been non-compliance with section 21(2)(b). They found that the union had not done its best to give individual written notice of the fact of repudiation to every member of the union who it had reasonable grounds to believe was taking part in the action. Mr. Linden submitted that the tribunal erred in this approach. There had been a written notice of repudiation sent to the employer and to Mr. Campbell; the terms of that notice had been read to the members of the union, and it included the statement which the notice is obliged to contain by virtue of section 21(3). Moreover, the written notice was made available by the employer to the employees by being posted at the position where the clock in.
69. The difficulty with this analysis is that this does not constitute the giving of written notice to each individual. That will not matter provided the union has done its best to provide this individual written notice but the tribunal concluded that it had not. That is a conclusion with which we can interfere only if it is perverse or has no evidential basis to support it. Plainly there was such evidence: the tribunal set out in terms what it considered could have been done by the union to seek to make sure that the individual did have access to this letter in a passage reproduced at para. 44 above. Their conclusions on this point are unassailable.
70. Even if we had concluded the union had done its best and that accordingly there was repudiation, that repudiation does not take effect until the end of the next working day after the day on which the repudiation takes place. Mr Linden submitted that the working day meant that period when the men were working normal working hours. On this analysis since the working day on the Friday finished at 1pm, the dismissals had taken place after the end of the next working day. We reject this construction of the provision. It seems to us plain that at the end of the next working day means what it says, namely, midnight on the following working day and not the end of the period which constitutes the normal working hours for the day in question. Had the latter been intended, Parliament would have said so. That was the clear view of the tribunal as set out paragraph 79 of its decision, reproduced in para. 45 above, and we consider that it was correct in its construction of the relevant provisions.
71. Accordingly, although on our analysis there are no automatically unfair dismissals, those employees who were not involved in an official industrial action and who had the requisite qualifying period were properly found to have been unfairly dismissed. This includes all the members of the AEEU and indeed any others person who were not members of the TGWU. The protection afforded to the latter is a consequence of the definition of unofficial industrial action in section 237(2) of the Act. We do not understand that construction to be disputed.

Two special cases.

72. We have heard appeals from two particular individuals, Mr Manning and Mr. Lowman. They were in a slightly different position to the other workers. In the case of Mr. Manning, who made oral submissions to us in person, he was involved in the collective action only on the Tuesday afternoon and the following Wednesday morning. Thereafter he was absent with permission until Monday 10 April, but he had received the letter of dismissal on Saturday 8^th. Mr. Lowman was in a similar position although his absence was through illness from the Wednesday onwards. He also received a dismissal letter on the Saturday. In each case it had been wrongly assumed that these workers had been involved in the action up to the Friday. The employer simply appears to have sent a standard letter to everybody apparently without distinguishing between those who might have a good reason for absence and the others.
73. This particular issue was not a matter raised before the Employment Tribunal, although they were aware of the different position of these two. Mr. Ford for the AEEU claimants frankly indicated that all parties before the Employment Tribunal were focusing on the bigger picture and that he did not pick up this point in relation to Mr. Lowman, who is one of the individuals for whom he is acting. Mr Linden submitted that it is too late for this matter to be introduced at this stage. The point was not made before employment tribunal and it would be wrong for this court to consider it now: see Kumchyk v Derby City Council [1978] ICR 1116. In the very special circumstances of this case we think that we ought to consider this point. It raises a pure issue of law, and in a context where all the other relevant factual material is before the tribunal in any event. Were these to be fresh issues of fact, then we would have acceded to Mr. Linden's submission.
74. In essence, the submissions of Mr. Lowman and Mr. Manning come to this. They were absent on the Tuesday and Wednesday morning in circumstances which fell within section 100(1)(d). Although those circumstances were no longer existing by the Friday, the tribunal's decision makes it plain that they amounted to justified reasons for absence earlier in the week. Accordingly, it is submitted that their dismissals could not have been by reason of their taking protective action under 100(1)(c), but must have been because of the absence without consent earlier in the week when they fell under the protection of 100(1)(d). We do not accept that analysis. It is plain that the reason why the employers dismissed them was not because they had taken action earlier in the week. Nobody had been dismissed for that reason, and it is wholly unrealistic to suggest that they employers were dismissing them for some reason not applicable to the other workers. They were dismissed because the employers had resolved to dismiss the whole of the workforce without distinguishing why they were absent. But they were not absent at the time of dismissal because they were exercising rights protected by section 100(1)(d). There can be no doubt that these dismissals were unfair under the general law, but of course they are only able to take advantage of that if they have been employed for the requisite period of time. Mr. Lowman has but we understand that unfortunately Mr. Manning has not. Accordingly, although we have been willing to consider the argument, we reject it.
75. We should add that we also heard submissions from a Mr Mathews who was arguably in a similar position because he left the site with permission on the Friday. The tribunal heard his argument and concluded that he was still associated with the industrial action. He did not seek to reopen that conclusion, which the tribunal was plainly entitled to reach, but he did submit that the employer had sought to manoeuvre these dismissals and that their evidence was wholly disingenuous. We cannot determine that matter because the basic findings of fact are for the employment tribunal. In any event, the tribunal found that the dismissals were unfair under general unfair dismissal law.

Conclusions.

76. The tribunal erred in concluding that the workforce was dismissed pursuant to section 100(1)(c). They were, however, entitled to find that the dismissals were unfair under the general law. This, however, gives a remedy only to the AEEU members and any non-unionists, and then only if they have the requisite qualifying period. We reach this conclusion with reluctance because we have considerable sympathy for the difficulties in which these men found themselves. The evidence suggests that whatever may have been the position on earlier occasions, on this occasion they were justified in seeking an improvement in what the appellants, by their subsequent actions, have implicitly accepted were unsatisfactory health and welfare conditions. We find it extremely surprising that they were not informed that the employer was intending to effect improvements which would go some way to meeting their concerns, or that they were not even given an ultimatum as to what the employer intended to do if they failed to return to work. We regret that the operation of the legal rules here, by leaving a significant majority of the workforce without redress, has not met the justice of the case.