United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mr S Saluja, Solicitor Of- Messrs Paull & Williamsons Solicitors New Investment House 214 Union Street ABERDEEN AB10 1QY
For the Respondents	Mr A Hardman, Advocate Instructed by- Messrs Drummond Miller Solicitors 65 Bath Street GLASGOW G2 2DD

SUMMARY
UNFAIR DISMISSAL

Unfair dismissal for trade union activity.

Sections 152 and 153 Trade Union and Labour Relations (Consolidation) Act 1992


 


LORD JOHNSTON:

1. This is an appeal at the instigation of the employer against a finding of the Employment Tribunal, to the effect, that, the decision by the employers to make the two respondent employees redundant, contravenes the provisions of section 152 and 153 of the Trade Union & Labour Relations (Consolidation) Act 1992. In respect of the first named applicant, no compensation was awarded, and, in respect of the second, a monetary award was made. However, the case before us was concerned with the merits of the decision.
2. The Tribunal's findings disclose that the employer embarked on a redundancy exercise in consultation with the recognised union, Amicus. There were members of the employer's workforce who were members of ISTC, which included the respondents, and the substance of the Tribunal's decision was that they had been selected for redundancy because of their trade union activities.
3. The reasons of the Tribunal are as follows:-

"It was not in dispute that there was, in common parlance, a redundancy situation. Nor was it in dispute that the reason for the dismissal of each applicant was that he was redundant. What is in dispute is whether the principal reason for each applicant being selected for dismissal was because each applicant had taken part in the activities of an independent trade union at an appropriate time.

It is necessary to seek the reason for the change in the weighting factor according to the length of service criterion. In this connection Mrs Arwen Cunningham said that Linda Denholm on the management committee represented the Queenslie element of the workforce, who were monthly paid. It was she (Linda Denholm) who had said that a weighting factor of two when applied to the length of service criterion was not fair to monthly paid staff. The suggestion from Linda Denholm was adopted and applied to the applicants. Their length of service now merited only a factor of one. Both applicants were, however, hourly paid and not monthly paid. Mrs Cunningham had simply said that Mrs Denholm's suggestion had been adopted "after discussion."

It is not of course suggested that no discussion took place. The evidence suggests that there was such a discussion, but the evidence is silent as to the reason for the change in regard to hourly paid staff. It was not explained why a weighting factor of two, previously regarded as appropriate in its application to hourly paid staff, was now considered to be inappropriate.

Mr Scott Sinclair did not expand upon the reason for this change. He simply suggested, like Arwen Cunningham, that the change was made "after discussion" and was applied to hourly paid as well as to monthly paid staff. He said that the "feedback" said it was wrong. The collective consultation had suggested the change.

Our view is that in a matter as critical as this in the context of the issues which we have to decide, the absence of a rational explanation in regard to the change in the weighting factor is a factor to which we are entitled to have regard. The inference which we draw is that the change was made for the purpose of placing both applicants at a disadvantage.

The same considerations in our view apply to the change which was made in the number of points deducted for a final written warning. Why change the number of points?

Mrs Cunningham said that there was nothing in the minutes of the consultation to reflect any discussion on this matter. The change had been "discussed in the consultative process". In that consultative process "the AEEU were representing all the hourly paid workers (including their own members). The agreement covered all employees - as I understood it. The AEEU took back all minutes and kept employees informed.... I only have the representatives' word for it that they did consult and get feedback."

These passages have to be looked at in the context of a situation where the ISTC Union had also requested - as indeed the AEEU had suggested - that the ISTC be involved in consultation. When asked for a reason for the increase in points to be deducted for a final written warning (up from 5 points to 8 points) Arwen Cunningham had simply said that they had made a decision to increase the points to be deducted from 5 to 8. Scott Sinclair gave evidence on this matter too. He said that the points change had been supported by Linda McCulloch, the full time official for the AEEU. He gave no reason for the change beyond saying that the change had simply been the "result of a discussion of the consultative group". In the result therefore the Tribunal received no rational explanation for the increase. Again we draw the same inference as we drew in regard to the change in the weighting factor in regard to length of service.

Notwithstanding the letter from the AEEU of 29th October 2001 (requesting that ISTC be part of the consultation process) the ISTC were not permitted to be part of that process. The ISTC letter of the same date (R11/1 and A43) made a similar request to the respondents. Arwen Cunningham said that she had seen that correspondence. She said that there was no need to involve the ISTC that the respondents "didn't believe that [the consultative process] wasn't adequate". This posture was despite the fact that the ISTC had asserted in their said letter that the AEEU were not to be representing the ISTC members. Mr Scott Sinclair too was asked about the correspondence. Mr Sinclair referred to a letter of 3rd December 2001 (A47) written by him to the ISTC. In his letter Mr Sinclair referred to a conversation with personnel in the ISTC on 23rd November 2001. His letter recorded that "this discussion concluded after Mr Marshall (of the ISTC) requested that [the respondents] consider a written proposal from ISTC which would in some ways seek to include the ISTC in some dialogue with FCI Scotland and the AEEU. I've informed him that a written proposal would be given due consideration. I see no purpose to the informal talks you are requesting."

A49 is a reply from Mr Marshall from the ISTC dated 19^th December 2001. In his letter Mr Marshall requested preliminary discussions with the respondents and with the AEEU. He added that "both FCI Scotland and the AEEU are well aware that the ISTC has by far the largest number of union members within FCI Scotland with over one hundred employees in membership. If either party wishes to question our membership claims we are ready and willing, under the auspices of ACAS, to have our membership numbers verified to your satisfaction."

In the event there were no discussions with the ISTC in connection with the criteria. The respondents did not, in the view of this Tribunal, justify the exclusion of ISTC from the consultative process. Again, we draw an inference adverse to the respondents in the context of the issues which we have to decide.

The two assessors who were responsible for the marks of Mr Collins gave the same mark only under one of the four criteria that these assessors were to apply. The criterion in regard to which the same mark was accorded was "performance". Under the heading of "versatility" and under the heading of "quality" they gave different marks. Remarkably, Mr John Johnson, however, under the heading of "degree of supervision" said that Mr Collins was "able to carry out daily routine tasks without close monitoring by supervisor". Isabel Burke on the other hand said that Mr Collins needed "direct supervision and regular monitoring by his supervisors".

There is a wide variation in that marking. We accept entirely that a variation may be attributable to an entirely honest view held by the marker. In the present case, however, we incline to the view that, taken with the other factors which we have identified, the wide variation in marking points to an intention on the part of the respondents to disadvantage Mr Collins.

In the case of Mr Collins, the first named applicant, his score was 62. If the earlier weighting had applied to his length of service, he would have scored an additional 4 points, bringing his total to 66 points.

In the case of Mr Cairns, the second named applicant, his score was 55. If the weighting for length of service had been as before he would have scored 4 additional points. If the deduction for the final written warning had been 5 points as before and not 8, he would have scored a further 3 points. His score would then have been 62 points.

We shall now say a word or two about a number of other issues which were raised.

The respondents submitted that the retention of Anne Docherty who was also active in the interests of ISTC militated against any conclusion that the principal reason for the dismissal of the applicants was because of their trade union activities. We decline to accept that submission. We do so for the reason that the dismissal of Anne Docherty along with two applicants would have led to an inevitable perception that the trade union activities led to their dismissal. The view which we take is that the respondents did not dismiss Anne Docherty for the very reason that they wished to "cloak" the principal reason for the dismissal of the two applicants.

It was submitted on behalf of the respondents that at the time when Mr Cairns was disciplined and at the time when he appealed, the respondents did not know that he had been attending an ISTC trade union conference. We do not believe that the respondents did not know the real reason for his absence. On the contrary, we have not the slightest doubt that the reason for the absence of Mr Cairns was well known to his immediate work colleagues, to the wider workforce, and to management. It is our view that this matter would certainly have come quickly to the notice of management through the medium of shop floor gossip.

It was submitted on behalf of the respondents that neither applicant had suggested at any of the consultation meetings that he had been targeted for trade union activities. It is true that none of the minutes of these meetings makes reference to that form of words. On the other hand, it is to be noted that Mr Cairns did suggest that the respondents were being "dishonest and corrupt". The process was "all to do with personalities". He said that "people have been targeted". He said that "the process is rigged to get rid of the people we don't want". He referred to the changes which had taken place in regard to the criteria for selection which changes, as he contended, had been made without a vote. Mr Collins complained that he had been "victimised".

As we say, the respondents are correct to point out that at no consultation meeting or appeal meeting was it alleged in terms that the selection was by reason of trade union activities. Nonetheless we are satisfied that principal reason for the dismissal of each was for that reason.

We heard much in evidence concerning issues as to whether the scores accorded to the applicants were or were not fair in comparison with the scores accorded to other employees. These issues concerned employees both at Queenslie and at Port Glasgow. Mr Derek Longyear for example was said by Mr Cairns, the second named applicant, to be young and inexperienced. He was employed at Port Glasgow. He scored 74.5 points. Mr Cairns had only scored 55. Mr Longyear was given a trial at Port Glasgow. Questions were also raised in regard to the decision of the respondents to classify employees as "packer drivers". We decline to make any findings in fact in regard to these matters. It seems to us that the evidence before us from each side is of such a vague quality that it would not be safe for us to draw any firm conclusions in regard to the comparative scores. That conclusion does not seem to us to do violence to the general conclusion which we reach in regard to the principal reason for the dismissal of the applicants. The view which we take in regard to the scores of the applicants is that they are tainted by reason of the considerations which we have earlier identified."

4. Mr Saluja, appearing for the appellants, submitted, effectively, that the inferences that the Tribunal had drawn as to the reasons for redundancy, namely, trade union activity, were unsatisfactorily based upon the evidence before them, and, effectively, amounted to a preconception on the part of the Tribunal as to the extent to which the employer was biased against these two employees in regards to their trade union activities. In this respect, reference was made to the fact that the employer had changed the marking procedures which affected these two respondents, and this was part of the Tribunal's thinking with regard to the question of discrimination in terms of 152 and 153 of the relevant Act.
5. Mr Hardman, appearing for the respondents, submitted that there were five questions on the evidence, all suggesting that the employer was hostile to ISTC in respect of which the relevant employees were active members. They changed the procedures and marking for no apparent reason with the result that it disadvantaged the respondents and they were accordingly made redundant.
6. We can deal with this matter very shortly.
7. Accepting as we do, that Mr Hardman's analysis of the evidence is justifiable, we also accept at once Mr Saluja's position that is not yield of the inference that the reason for redundancy was trade union activity. In particular, we consider there was a crucial gap in the evidence as far as the findings of the Tribunal are concerned, as to the extent which other employees and the respondents were affected by the change in the marking system. We do not consider it is legitimate for the Tribunal to have drawn the inference they have, with regard to trade union activity and its causal connection with redundancy, without knowing whether other people were not treated in the same way. We accept that the reference by the Tribunal as to how another employee was actually treated, namely, not being made redundant, is nothing to the point.
8. For this simple reason, we consider that this Tribunal went too far in drawing the inferences they did, and, that its decision cannot stand upon the basis that the evidence recorded to us, is not sufficient legitimately to yield the inferences in question. The matter, therefore, arises as to what the outcome of this should be, and, with some hesitation, we have come to the view that we cannot substitute our own view for that of the Tribunal. We are, therefore, required to quash the decision but remit the matter to a freshly constituted Tribunal for a rehearing, if such is considered desirable or necessary by either party.
9. On this basis the appeal is allowed and remitted to a freshly constituted Tribunal for further procedure.