United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J SHEPHERD (of Counsel) Instructed by: City Link Ltd Wellington House 61-73 Staines Road West Sudbury on Thames Middlesex TW16 7AH
For the Respondent	MR C BOURNE (of Counsel) Instructed by: Bridge McFarland Solicitors 3-9 Tentercroft Street Lincoln LN5 7DB


 


SUMMARY

Trade Union Rights – Interim relief

Applicant was dismissed. ET made no finding as to unfair dismissal – presumably because it found automatic unfair dismissal due to trade union membership. The appeal considered the question of the drawing of inferences on their case.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from the Employment Tribunal sitting at Carlisle, from their finding that the Respondent employer, Initial City Link, had dismissed Mr I S Turner for a reason that was automatically unfair, namely that he was a member of a trade union.
2. Mr Turner had been employed for the qualifying period for unfair dismissal, starting his employment in January 2002. He was employed as a driver and a team leader. The Respondent company provided a courier service and they undertook to deliver items on the next day. There was a rota as far as various places are concerned and on Saturday 16 July 2005 Mr Turner arrived at work and was given his route for that day. He had to go to Dumfries. He was not happy. Previously in the last six rounds he had gone to Workington, to Whitehead twice and three times to Dumfries. Although not the longest route, which was to Barrow-in-Furness, it nevertheless took 45 minutes each way and it was considerably longer than was the case with the route in Carlisle. Once an employee had completed his deliveries he was free to go home. The Claimant went to Mr Brown, his supervisor, and complained about the fact he had been given Dumfries for the third time in six runs and did not think it was fair. Mr Brown refused to change his route and the Claimant, Mr Turner, chose to inform Mr Brown that he was going home. He walked out.
3. The Tribunal's decision fully deals with all the various procedural steps that were taken which ultimately led to the disciplinary hearing and the Claimant being dismissed.
4. When the Tribunal convened on 27 June 2006 there was something of a procedural hiccup. The matter had originally been listed for 13 April 2006 and at that hearing the Claimant, Mr Turner, sought, and was granted, an adjournment to allow him to obtain new legal representation, his former solicitors no longer being in a position to represent him and the Claimant wanted him to obtain witness statements from ex-employees and union representatives. An order was made requiring the Claimant to serve those statements. No such statements were obtained.
5. In paragraph 1.4 the Tribunal noted that the Claimant had been unable to persuade witnesses to attend the Tribunal and he had not prepared a witness statement himself believing this was not necessary as his evidence was set out in full in his claim form. Ms Shepherd sought to strike out the Claimant's claim on the basis that he had not complied with the order. Ms Shepherd, who appears before us as well as appearing as Counsel before the Tribunal for the Respondent employer, has not sought to attack the Tribunal's failure to accept her request that the case be struck out. No application was made for an adjournment. The reason no application was made for adjournment, Ms Shepherd has told us with total candour, was the company for whom she acted had already incurred a high amount of costs. Ms Shepherd did not feel that it was justified to go on incurring still further costs and so she took the decision to go on. We do not criticise that decision at all. What the Tribunal did was to allow Mr Turner to give his evidence first on the basis that the Appellants would be able to know what was alleged.
6. The Grounds of the Appeal set out in some detail the way in which it is said the Tribunal made findings that were plainly wrong or findings that no reasonable Tribunal could have made on the evidence before them. We have to say we were taken to some of the examples alleged and we do not consider that there was much, if we may say so, to be gained by the somewhat arid dissertation of whether the Tribunal's decision reflected the evidence given. Much turns on a rather semantic debate. We do not consider any matters raised came anywhere near to showing perversity.
7. This Tribunal at paragraph 1.3 quite rightly identified the issues:

i) "What was the real reason for dismissal - was it for a reason relating to the claimant's membership of a trade union or any activities associated therewith.

ii) If the reason was not related to trade union membership or activities was it for a reason relating to the Claimant's conduct.

iii) Did the Respondent act reasonably in treating this as a sufficient reason for dismissal - the band of reasonable responses test.

iv) Did the Respondent follow a fair and objective procedure.

v) Are there any Polkey and/or contribution issues."

8. Unfortunately when it came to its judgment the Tribunal's only conclusion was that the real reason for the Claimant's dismissal was on the grounds of his membership in an independent trade union and in particular because he sought advice and representation from his union at his disciplinary and appeal hearings (see paragraph 4). In reaching its conclusion the Tribunal said that it had regard to all of the evidence set out above and the findings of fact. It is correct to say that the Tribunal earlier in its decision made findings of fact at paragraph 2.12 which would be a prelude to an almost inevitable finding of unfair dismissal in they found that:

i) The investigation carried out by Mr Wild was inadequate and was based solely on two very brief statements made by Mr Brown and Mr Robinson.

ii) The disciplinary hearing was very brief and the decision made by Mr Wild to dismiss the Claimant for gross misconduct was made quickly and based upon his own inadequate investigation.

iii) The notes of the disciplinary hearing were very brief, and Mr Wild totally disregarded the Claimant's previous disciplinary record and reasons for not following the instruction to take the route to Dumfries.

iv) There was an inconsistency in the treatment between the Claimant who was dismissed for failing to follow an instruction and the three employees in the warehouse who were simply given verbal warnings for failing to follow instruction.

v) There was a lack of investigation by Mrs Doree both before the first appeal hearing, but in particular after that hearing had been adjourned and before it was reconvened despite her statement that she would make further enquiries.

vi) There was lack of enquiry by Mr Evans at the second appeal hearing and he totally disregarded the statement by Mr Johnston.

9. Despite the target menu set out in paragraph 1.3, no concluded judgment about unfair dismissal was given, nor any findings made as to whether or not there should be a deduction either because there was a contribution by the Claimant or by way of Polkey. In essence, we consider this decision is flawed. We have not reached that decision lightly.
10. This Tribunal had, on any view of the matter, considerable sympathy for the Claimant whose evidence they obviously accepted and they did not find themselves impressed by the evidence of the dismissing officer Mr Wild.
11. In any area of discrimination Tribunals quite rightly analyse the way the Claimant was treated and the way in which others were treated. Discrimination is the disparate treatment of the individual compared with appropriate comparators. However, we are concerned in the way in which this Tribunal has jumped from making a finding about what happened to this Claimant and what happened to the employees in the warehouse. From the findings of fact made by the Tribunal, set out in paragraph 2.8, on 23 July 2005, three employees who worked in a warehouse were asked by their line manager to go and find a parcel that was required for one of the delivery routes that day. They were told three times to look for this parcel but then went home without doing so. Mr Evans, who was a witness in the case, told the Tribunal that Mr Robertson had complained about these three employees and their refusal to follow his instructions but his complaint had been withdrawn, there being no further action against these employees. Both the Claimant and Mr Wild said that the three employees had been disciplined, having been given written warnings. The Tribunal accepted there had been disciplinary proceedings. Mr Wild, who conducted the disciplinary hearings for these employees, suggested that the reason that they were given written warnings for their failure to follow a reasonable instruction rather than be dismissed was that the three employees had not heard the instructions given to them even though it had been repeated three times. The Tribunal was not convinced by Mr Wild's suggestion that three employees did not hear the instruction and found that Mr Wild had treated these employees differently to the Claimant who was guilty of the same offence albeit under different circumstances.
12. At paragraph 12(4) the Tribunal says there was an inconsistency in the treatment between the Claimant who was dismissed for failing to follow an instruction and the three employees in the warehouse who were simply given verbal warnings for their failure to follow instructions. It has to be said that it was not clear what sanction was imposed. At paragraph 2(8), mention is made of written warnings and then in 2(12) verbal warnings are mentioned.
13. It is a misdirection of law to draw inferences which are based on, if one may say so, a misleading premise. To tell your supervisor that you are not going out to do a particular route is in the view of the industrial members of this Tribunal a fundamental failure to carry out a lawful and reasonable instruction. It is one thing to complain: it is different to refuse. That in the industrial experience of the members of this Tribunal is a totally different situation than being told to find a parcel and then saying 'we didn't hear'. Counsel for the Respondent argues about the illogicality of saying that they did not hear and then giving them a written or oral hearing. The difference between conviction and sentence is not always so carefully delineated in the workplace as the submissions of Mr Bourne would suggest. The reality is that we consider any Tribunal properly directing themselves would not on the information before them readily equate employees not getting on with finding a parcel with an employee in a very public and peremptory way refusing to go on a rota.
14. The Tribunal's decision that this was a dismissal which was based on the Claimant being a trade union member is founded on a suggestion that at some stage Mr Brown had told Mr Johnson, the Claimant's union representative, that he had heard Mr Wild saying that if the Claimant brought a union representative with him to the disciplinary hearing he would be dismissed. The Claimant was not told at the time the name of that other employee. Mr Wild denied making this statement. The Tribunal were not convinced by his denial and preferred the evidence of the Claimant finding that Mr Wild had made a statement about dismissing the Claimant if he had attended the disciplinary hearing with a trade union representative. The Tribunal referred to a signed statement made by Mr Johnson, which confirmed that at a social event in mid-July, which was attended by a number of the Respondent's employees, he was told that the Claimant was to be dismissed at his forthcoming disciplinary hearing because he was a member of the RMT and had asked for representation in his disciplinary meeting. This statement of Mr Johnson, page 115 of the bundle, supports the evidence given by the Claimant. Tribunals are not bound by rules of hearsay; indeed the rules of hearsay over the years have been relaxed. We approach this not on the basis of academic lawyers writing an article on matters of evidential consideration by fellow academics. We are bound to say we note with concern, that although this Tribunal was entitled to admit this evidence, if we may say so they do not demonstrate in their decision any awareness of the pitfalls which the reception of such evidence in an uncritical way can cause. Mr Brown did not give evidence; Mr Johnson did not give evidence and indeed at the start of the Tribunal hearing, according to paragraph 1.4, the Claimant was saying that he had been unable to persuade witnesses to attend the Tribunal.
15. On the findings of the Tribunal, the Claimant had a strong case of unfair dismissal. What we are troubled about is that in drawing the inference that the dismissal was due to trade union activities, we consider the Tribunal did not investigate the circumstances of the treatment of the other employees in the warehouse with the circumstances of the treatment of the Claimant sufficiently to provide a firm enough foundation on which that inference could be drawn. Moreover, we are concerned that the Tribunal relied on a piece of hearsay evidence of what the Claimant had been told by his trade union official that somebody else had heard Mr Wild say. On a matter as crucial as this, whilst we fully accept the Tribunal was entitled to make findings adverse to the credibility of Mr Wild, we are concerned that the two planks upon which it is said that there was a finding of dismissal due to trade union membership, rest on too flimsy a foundation to draw such an inference. It would be open to a Tribunal to do so, but it would need to be on clearer evidence as to the precise circumstances of the warehouse incident and whether or not the employees concerned were trade union members.
16. We are concerned that the Tribunal said it was going to determine the unfair dismissal case and any question of contribution or Polkey deduction but it did not. It rested its findings on the decision of automatically unfair dismissal.
17. The fact that an employee is treated unfairly may give rise to an inference that the employee has been discriminated against by reason of trade union members. Had the Tribunal analysed the position and made more comprehensive findings then we accept that they could well have come to the view that there was discrimination against the Claimant by virtue of trade union membership. We allow the appeal and direct that the matter be remitted to a differently constituted Employment Tribunal. Although we are not committing the employer to this, Ms Shepherd has not disguised the fact that her clients are concerned with a finding of unfair dismissal far less than they are with a finding of dismissal due to trade union activities. We would have thought that this matter is eminently capable of settlement. We are sending it back to a fresh Tribunal because we do not think, with the greatest respect that for the careful arguments by Mr Bourne, that the same Tribunal should rehear the matter in view of the fundamental flaws in this original decision. It should be done fresh. But we hope that the incipient settlement which was implicitly (if not explicitly) proffered by Ms Shepherd is explored. It would be a waste of time, energy and both private and public money, if that could be avoided by a sensible settlement.
18. This appeal is allowed under a freshly constituted Tribunal which should consider all the issues which the Employment Tribunal set out in paragraph 1:3 of its decision.