United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr James Boyd (of Counsel) Instructed by: Eversheds LLP Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES
For the first, second, third, and fifth Respondents	Mr Marcus Pilgerstorfer (of Counsel) Instructed by: UCU Solicitors Office 27 Britannia Street London WC1X 9JP
For the fourth Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke

Unfair Dismissal – Automatically unfair reasons

Reason for dismissals – redundancy or trade union activities? Majority finding of Employment Tribunal that it was trade union activities neither inadequately reasoned nor perverse. Murray v Foyle Meats [2000] 1 AC 51 does not require the soundness of the business case for redundancies to be considered before the Employment Tribunal decides what was the true reason for dismissal.


 


THE HONOURABLE MR JUSTICE BEAN

1. The five Claimants, the Respondents to this appeal, were lecturers in the Trade Union Education Division within one of the departments of Manchester College of Art and Technology (MANCAT), the Appellant.
2. The Claimants were dismissed in August 2004. The reason put forward by management was that they were redundant. The Claimants, however, alleged the true reason or principal reason for their dismissal was that they were members of, or had taken part in the activities of, an independent trade union. Alternatively, they claimed unfair dismissal.
3. There were also claims for unpaid wages by three of the Claimants, two of which were withdrawn; the third was rejected by the Tribunal. No issue as to that arises on appeal, nor is there any dispute about the independence of the relevant trade union (NATFHE) or the appropriateness of the time at which trade union activities were undertaken.
4. The Employment Tribunal, by a majority, found for the Claimants on the trade union activities issue. The majority consisted of the two lay members. The Chairman, Mrs Porter, would have rejected the claim. She was satisfied that the reason for the dismissals was redundancy. She would have found unfair dismissal on procedural grounds but would have found under Polkey that there was 100% likelihood that the Claimants would have been dismissed at the end of their period of notice in any event.
5. MANCAT appeals against the majority decision. The hearing lasted 16 days, after which the Tribunal deliberated in chambers for no less than eight days. The product of their labours - and the evidently considerable labour of Mr Pilgerstorfer and Mr Boyd who represented the respective parties for the Tribunal as they have before us - was a 55-page judgment. We refer to that not as a criticism: the length of the hearing and the complexity of the case justified it.
6. The structure of the Employment Tribunal decision is that after four introductory paragraphs, they devote section 5 of the decision - consisting of 136 paragraphs taking up 35 pages - to the findings of fact which they made unanimously. They then deal with the findings of fact and conclusions on which they diverge. The lengthy section of unanimous findings of fact is interspersed extremely helpfully with the reasons for which the Tribunal preferred the evidence of the Respondent's witnesses or, as the case may be, the Claimants', on particular points which were the principal ones in dispute. The unanimous findings of fact are not, and could not be, the subject of criticism and we pay tribute to their thoroughness and clarity.
7. Mr Boyd, for the Appellant, raises two points. The first is inadequacy of reasoning on a particular point deriving from the decision of the House of Lords in Murray v Foyle Meats Ltd [2000] 1 AC 51, and that of the Court of Appeal in English v Emery Reimbold & Strick Ltd [2003] IRLR 710. The second ground of appeal is that a number of findings of the majority are perverse.
8. Murray was a redundancy case, though not one in which it was alleged that trade union activities were the true reason for dismissal. The House of Lords, led by the then Lord Chancellor, Lord Irvine, gave their imprimatur to the classic judgment of this Tribunal delivered by HHJ Peter Clark in Safeway Stores plc v Burrell [1997] ICR 523, and dispatched to the dustbin of legal history (at least on this issue) the rather complex and confusing decisions of the Court of Appeal in the two cases of Nelson v BBC. Their Lordships held, first, that whether the requirements of a business for employees to carry out work of a particular kind have diminished is a question of fact for the Tribunal, and second, whether the dismissal of an employee was wholly or mainly attributable to that state of affairs is a question of causation and fact for the Tribunal.
9. Mr Boyd submits that these are two separate and distinct questions and should be answered separately as a two-stage process. The majority, he submits, made no finding in answer to the first question, that is, whether there was a genuine redundancy situation and accordingly their finding adverse to his client on the second question, must be regarded as suspect.
10. Mr Pilgerstorfer, for his part, accepts that there is no express finding in answer to the first Murray question but argues that in the circumstances of this case it was not necessary for there to be one.
11. We have no doubt that the business case for closure of the Trade Union Education Division was put fairly and squarely before the Tribunal. Two reports of Ms Gilluley, Vice-Principal of the College, were in the bundle of documents and are discussed extensively in the skeleton arguments of Counsel. It is apparent from the skeleton arguments of Counsel before the Tribunal that the Claimants did not accept there was a business case for redundancies at all. The majority conclusion was that MANCAT had not established a potentially fair reason for dismissal, that is to say, redundancy. They drew an adverse inference from this and found that the real reason for the dismissal of each of the Claimants was their trade union membership and/or activities.
12. We need not recite the numerous findings of fact by the Tribunal about the hostility of Mr Tavernor, the then Principal of the College, towards the Claimants. Suffice it to say there was ample factual evidence from which a Tribunal of fact could conclude that he, as the decision-maker, was motivated by animosity towards the Claimants on the grounds of trade union activities. It is not of course for us to say – and Mr Boyd does not suggest that it is for us to say – whether we would have made the same findings of fact ourselves, nor whether we would have drawn the same conclusions from them.
13. As to the reasoning which led to the conclusion, we think, with respect, that the final paragraph of section 25 of the judgment could have been better expressed, but we do not consider that the Tribunal committed any error of law. There were in this case, as in many other cases in which trade union activities are an issue, two stark alternatives. Was the reason, or principal reason, for the dismissals redundancy? Or was it trade union activities?
14. In such a case, Claimants may succeed in either of two ways. First, if the Tribunal reject the genuineness of the redundancy situation itself it is highly likely that they will go on to find that the true reason was the only alternative being put forward, namely, the section 152 reason. It is difficult, as many cases amounting to trite law have established, for a Tribunal to find that management's assessment of the economics of the business and the requirements of the business for a particular number of employees of a particular kind is wrong. Nevertheless, it is possible to do so. The alternative route to success for Claimants in a case of this type is if the Tribunal decide that whatever the strength of the business case for redundancies, even accepting at its highest, it was not the true reason or principal reason for the dismissal.
15. As we read this judgment, the latter is what the majority found in this case. The unanimous findings of fact in section 5 include detailed summaries of the two reviews of Ms Gilluley, to which we have referred, at paragraphs 5.89 and 5.98 respectively. There was an issue of fact as to whether the second review document was a put-up job to justify a decision which Mr Tavernor had already taken, on which the majority made a finding adverse to MANCAT, which it was plainly open to them to make. But there is no adverse comment, either in the unanimous findings or in the reasoning of the majority later in the judgment, on the substance of what Ms Gilluley wrote. If the majority of the Tribunal had thought that there was no business case for redundancies in the Trade Union Education Division, it would have been easy enough for them to say so. We infer from the absence of such finding that they were prepared to consider the motives of Mr Tavernor on the assumption that there was indeed a business case.
16. The judgment repeatedly emphasised what must have been a serious difficulty for those conducting the employer's case in the Tribunal, namely the absence of the principal decision-maker, Mr Tavernor. A slightly less important witness, Mrs Forshaw, the Deputy Principal, was also not called. There is no suggestion in the judgment that either of these two individuals was dead, or too ill to assist, or untraceable, and Mr Boyd has frankly confirmed in answer to a question from this appeal Tribunal that such was not the case. The Tribunal had to proceed on the basis of the evidence which they did have.
17. As we have said, if they had thought there was no business case for redundancy it would have been easy enough for them to say so and that would have provided, in effect, a short cut to a conclusion about the trade union activities issue. We consider that the majority were prepared to assume that what Ms Gilluley wrote was factually correct. Nevertheless they found that the decision-maker, who had not given evidence, was motivated by hostility towards the Claimants on the grounds of trade union membership or activity and that this accordingly was the true reason or principal reason for the dismissals.
18. We turn to the second ground of appeal, namely, perversity of specific findings of the majority. Mr Boyd very properly began by referring us to the two well-known decisions of Mummery LJ in the Court of Appeal in Yeboah v Crofton [2002] IRLR 634, and of the same judge when President of this Tribunal in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440. We need not cite these well-known passages. Perversity is a high hurdle to jump.
19. The paragraphs of the decision which Mr Boyd criticises are said to be inconsistent with previous unanimous findings, with which he does not take issue. We will refer to a few of his principal examples. In the unanimous findings at para 5.133 and the majority findings at para 6.3 there is discussion of the administrative arrangements for payroll deductions of NATFHE subscriptions. The finding at 5.133 was that UNISON subscriptions, unlike NATFHE subscriptions, were deducted from payroll, but NATFHE refused to provide a list of members' names; NATFHE suggested the use of ACAS as a way forward; MANCAT suggested that their auditors could fulfil the function; NATFHE rejected the suggestion. The result was an impasse with neither side willing to back down. Against that background, the majority found:

"6.3 The union's offer of the involvement of ACAS was a wholly reasonable offer. The respondent's explanation for its refusal to involve ACAS is unsatisfactory. The failure to provide any sound reason for failing to accept this offer is indicative that the Principal [that is, Mr Tavernor] wished to see a list of names of NATFHE members. The respondent's insistence that the matter be dealt with by its auditors was unreasonable."

20. Mr Boyd's submission that this is a perverse finding is one that we cannot accept. It is well known that in organisations where industrial relations are more or less fraught the provision to management of a list of members of a particular trade union in their employment is extremely sensitive. We need say no more than that the findings of the majority were ones which they were entitled to reach.
21. In para 25.5 there is a discussion of the offer in July 2003 of fractional contracts with ⁶/₁₀ of full working hours to the Claimants, as an alternative to making two of the five of them redundant. The majority held:

"25.5 Mr Tavernor, without reasonable discussion, offered five 0.6 fractional contracts and insisted on responses from the claimants within a very short timescale. The claimants were not given sufficient time to consider the consequences of the change to their contractual terms. Inadequate steps were taken by management to ensure the success of the new fractional contracts."

This is said to be inconsistent with the unanimous findings at paras 5.46-5.48 on the same topic. We will not lengthen this judgment by reading out paras 5.46-5.48; it is enough to say that we find no such inconsistency. On any reading of paras 5.46-5.48 the timescale for decision-making on this topic (which is of course part of the history rather than part of the ultimate decision) was extremely abbreviated and it was open to the Tribunal to make the findings which they did.

22. Another finding which Mr Boyd submits is perverse, on a similar topic, is to be found in para 25.7. That paragraph includes the following:

"… that there was fundamental disagreement regarding the hours to be worked under the 0.6 contracts, and a refusal on the part of the claimants to work additional hours without amendment to the contracts."

The majority found:

"This was a legitimate trade union stance and legitimate trade union activity. This information, plus Mr Brown's intention to go to Pakistan, coupled with the sickness absences, gave the respondent genuine concern as to their ability to cover courses. The respondent did not address this issue with the claimants although they used it as part of the justification to close the TUED. The question of the hours to be worked is the crux of the problem. It was not discussed with the claimants while closure of the unit was under consideration."

This again is said to be perverse or inconsistent with earlier findings. We do not think so. We think there may indeed be a mis-interpretation of the issue to which the Tribunal were referring in this and the subsequent paragraph, 25.8. One point in dispute between the Claimants and management was whether, in the calculation of total hours to be worked during the balance of the academic year after the change to 0.6 contracts, credit was to be given for extra hours worked before 1 November 2003. A different argument, and one more deeply rooted in a disagreement of principle, was the one referred to in para 25.7. The Claimants' case was that the management, having reduced the Claimants' contracts from full-time to ⁶/₁₀ of full-time were then trying to have their cake and eat it by requiring the working of additional hours, albeit for additional pay, to suit the requirements of the business. The conclusion of the majority about this, in paras 25.7 and 25.8, was one which was open to them. Again, of course it does not matter whether we would have reached the same conclusion ourselves. We simply express no view one way or the other.

23. In para 25.15 the majority draw a contrast between the treatment of the Claimants - who, immediately after the decision to close their department and make them redundant, were barred from entering the College unless required to attend a meeting, and not permitted to attend even during the period of their notice until 31 August 2004 - and the property division, where there were also redundancies but those involved were allowed to work out their notice. We consider that this was a legitimate contrast to draw and remained so despite the fact, as the Tribunal had found in section 5, that the property division taught two-year courses which made it impracticable to effect an immediate closure of the course. What exercised the majority, as we read this paragraph, is the fact that the Claimants were immediately removed from the premises, rather as though they had committed some form of gross misconduct. We do not think that this finding was erroneous, still less perverse.
24. Mr Boyd's final example is, so far as we can see, a good one. In para 25.18 the majority found that MANCAT had failed to provide a satisfactory explanation as to why Mr Sivori, one of the Claimants, was not given the post of ESOL tutor. Mr Boyd rightly points out that this is inconsistent with the finding in para 5.135 that Mr Sivori did not have the requisite teaching qualification to teach as an ESOL tutor and it was not possible for him to complete his training within the summer term of 2004 or a reasonable period thereafter. This is, as we have said, a good point, but it is a very minor blemish on a series of findings of fact which, save in the one respect we have identified earlier, are not open to criticism, and it does not come anywhere near undermining the foundations of the conclusions of the majority, either in Mr Sivori's case or any other.
25. It follows that the appeal must be dismissed.