United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0408/14/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 16 April 2015

                                                                            Judgment handed down on 21 December 2015

 

 

 

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

 

 

 

 

 

UNIVERSITY OF BOLTON                                                                                  APPELLANT

 

 

 

 

 

MRS J CORRIGAN                                                                                              RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR SIMON GORTON (One of Her Majesty’s Counsel) Instructed by: JMW Solicitors LLP 1 Byrom Place Spinningfields Manchester M3 3HG
For the Respondent	MR CHARLES PRIOR (of Counsel) Instructed by: Thompsons Solicitors 6th Floor, Martins Building Water Street Liverpool Merseyside L2 3SX

 

SUMMARY

UNFAIR DISMISSAL - Automatically unfair reasons

VICTIMISATION DISCRIMINATION - Detriment

 

The Claimant was branch secretary of UNISON.  Her post and six others in Library Services were deleted.  Two new team leader posts were created.  She had a good chance of being appointed to one.  In the course of the redundancy exercise she was critical of management.  Both new posts were then deleted.  One was reinstated but not the other to which the Claimant had a good chance of being appointed.  The Claimant was dismissed as redundant.  The Employment Tribunal did not err in their approach to the claim that the Claimant had been subjected to a detriment, the withdrawal of the team leader post, of penalising her for taking part in trade union activities.  However the Employment Tribunal erred in their approach in concluding that the Claimant had been “automatically” unfairly dismissed within the meaning of TULR(C)A section 152 because she had taken part in trade union activities.  The Employment Tribunal erred in reasoning that because they did not accept the Respondent’s reason for dismissal, redundancy, the claim under TULR(C)A section 152 was made out.  Whilst the ET referred to Kuzel v Roche Products Ltd [2008] IRLR 530 they did not apply the approach explained in paragraph 59.  The Employment Tribunal should have decided that the reason for the dismissal was rather than accepting that it was the reason advanced by the Claimant once they did not accept that put forward by the Respondent.  Appeal against finding of unfair dismissal allowed.  Unfair dismissal claim remitted for rehearing.

 

THE HONOURABLE MRS JUSTICE SLADE DBE

 

1.                  The University of Bolton (“the Respondent”) appeals from the Judgment of an Employment Tribunal, Employment Judge Jones and members, (“the ET”) sent to the parties on 6 May 2014, (“the Judgment”).  The ET held that the Respondent to this appeal, (“the Claimant”) had been subjected to a detriment to deter or penalise her for taking part in trade union activities within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”).  The ET held:

“The claimant was subjected to a detriment by the respondent in deleting the User Services Team Leader post from the restructure on 4 and 6 December 2012 which was confirmed on 15 January 2013, for the sole or main purpose of preventing her from taking part in the activities of an independent trade union or penalising her for so doing”

 

The ET further held that the principal reason for the Claimant’s dismissal was that she had taken part in the activities of a trade union.  They held that her dismissal was “automatically” unfair by application of TULR(C)A section 152(1)(b).  Mr Gorton QC appeared for the Respondent and Mr Prior for the Claimant.

 

2.                  The issues to be determined on this appeal are those allowed to proceed in the Rule 3(10) Judgment of Mr Justice Langstaff, President, of 26 November 2014 under order seal date 11 December 2014, in respect of the challenge to the finding of unfair dismissal and by the consent order of Bean LJ on 10 March 2014.

 

3.                  Langstaff P dismissed all grounds of appeal challenging the finding of the ET that the Respondent had subjected the Claimant to a detriment by reason of her trade union activities and that her claim under TULR(C)A section 146 succeeded.  Langstaff P also dismissed grounds of appeal from the decision that the Claimant had been unfairly dismissed save for those “to be determined in accordance with the issues identified in the oral judgment given today.”

 

4.                  As at the hearing before me there was some discussion as to which issues were to proceed to a Full Hearing.  I will set out the passages in the Judgment of Langstaff P which show which of the controversial grounds of appeal on unfair dismissal he held should and should not proceed to a Full Hearing.  The Meek (Meek v City of Birmingham District Council [1987] IRLR 250) challenge to the Judgment for inadequacy of reasons for the finding as to the reason for dismissal was not permitted to proceed.  Langstaff P held at paragraph 19:

“From first to last, the Judgment is full of the criticism by the Tribunal of the inadequacies of the evidence before it.  It was essentially that which made it reach its decision.  It is not for a party which produces inadequate evidence, when the burden of proof lies on it to show what the reason was, to complain that a Tribunal did not decide with sufficient clarity who the decision maker and what the particular reasons for that decision may have been.  That is an analysis which would only begin if the evidence clearly showed who had actually taken the decision and there was capable sufficient clarity about those reasons.  This is what the Tribunal here said was missing.”

 

A perversity challenge to the finding of unfair dismissal was not permitted to proceed (Paragraph 24).  The grounds which were to proceed to a Full Hearing were on the alleged error in approach of the ET to their decision that the reason for the dismissal of the Claimant was her trade union activities.  Langstaff P held at paragraph 21:

“I accept Mr Gorton’s point that it is arguable that, having described itself as unable, on the evidence, to hold that the employer had established a potentially fair reason, it did not necessarily follow that the real reason for the dismissal was that which the Claimant asserted.  As Mr Gorton forcefully pointed out, this was not a discrimination case.  The approach to be taken in such cases is not necessarily the approach which is appropriate in respect of section 98, and indeed he drew my attention to authority which says just that.”

 

Because the decision of the reason for dismissal could affect the decision of its fairness the ground of appeal raising this point was also permitted to proceed. 

 

5.                  The Respondent appealed the dismissal by Langstaff P of the appeal from the finding that it had subjected the Claimant to a detriment by reason of her trade union activities.

 

6.                  Before solicitors for the Claimant consented to the appeal to the Court of Appeal being allowed they sought and were given clarification on the grounds of appeal.  Before the consent order of 10 March 2015 was made solicitors for the Respondent replied by letter of 2 March 2015 in which they set out their leading Counsel’s clarification.  In respect of the appeal to the Court of Appeal from the decision of the EAT in the Rule 3(10) Hearing dismissing all grounds of appeal from finding that the Respondent had subjected the Claimant to a detriment under TULR(C)A section 146, the solicitors wrote:

“(1) While the appeal to the EAT canvassed 2 grounds of appeal in respect of detriment (paras 15-16) namely:

(a) Whether in law there was a detriment by way of the failure to appoint Mrs Corrigan to the proposed post

(b) Whether the ET erred in law in finding that the reason for Mrs Corrigan’s detriment / treatment was on trade union grounds

(2) The EAT rejected ground (a) above at the hearing before the President

(3) As the single ground of appeal to the CA makes clear (para 8), the Appellant has not appealed the EAT’s finding on (a)

(4) The appeal to the EAT will therefore canvass one ground dealing with the ET’s treatment of the reason for (a) detriment (b) dismissal

(5) The other grounds contained in the notice of appeal the Appellant has not been granted permission to appeal on and will not, and cannot, be pursued at the forthcoming EAT hearing”

 

7.                  The grounds of appeal before the Full Hearing were therefore those clarified in the letter of 2 March 2015 which formed the basis of the consent order.  In respect of the claim for unfair dismissal these reflected the judgment of Langstaff P.  The President did not allow all grounds of appeal from the finding of unfair dismissal to proceed to a Full Hearing.  Those to proceed were those set out in his Judgment which were against the finding of the ET that the reason for the Claimant’s dismissal was her trade union activities.  The significance of this finding is that it leads to a finding of “automatic” unfair dismissal and is particularly reprehensible and is likely to have adverse reputational consequences for the Respondent.  The President also permitted the ground in the first sentence of paragraph 25.4 to proceed to a Full Hearing.

 

Outline Facts

8.                  The Claimant had been employed by the Respondent for about 21 years, latterly as a Library Support Team Leader.  In 2002 she was elected Branch Secretary of UNISON.  In September 2012 the Respondent announced that it was considering restructuring to make substantial savings.  It was proposed to achieve savings of about £3 million.

 

9.                  The Claimant, as Branch Secretary, was involved in consultation meetings with the Respondent about the proposed restructure.  In the first proposal for up to 92 redundancies out of a staff of 634 it was proposed that seven posts in the Library Student Services Department where the Claimant worked including that held by the Claimant, would be deleted, and two new posts created.  Those were Subject and Collection Team Leader and User Services Team Leader.  The ET held:

“Although the Claimant’s job was to be deleted she believed that she had a good chance of being redeployed and appointed to the new proposed post of User Services Team Leader.”

 

10.              Seven consultation meetings were held.  At the first meeting on 11 October 2012 the Claimant challenged the way in which members of staff had been informed that their jobs were at risk.  This led to a request for a vote of no confidence in the Senior Management Team which was held and carried.

 

11.              At a staff meeting the Vice-Chancellor and Pro Vice-Chancellor expressed their concern about the cost of ongoing consultation.  To demonstrate the cost the Pro Vice-Chancellor turned over a ten pound note from a large pile of notes once every 10 seconds.

12.              The ET found that at a staff meeting on 7 November the Vice-Chancellor carried out another unconventional act, the production of a large specially commissioned cheque for £400,000 to show the cost of a 90 day consultation period.  At the meeting he made disparaging remarks about the unions.

 

13.              On 20 November 2012 the vote of no confidence was delivered to the Vice-Chancellor’s office. 

 

14.              The ET found that at a meeting on 30 November 2012 alternative proposals for restructure were discussed which still included the two team leader posts.  In response to the question from the Vice-Chancellor as to who would be in the pool for those posts, the ET accepted counsel’s submission that it was likely that he was told that the Claimant was the front runner for the User Services Team Leader post.

 

15.              The ET set out their findings on the evidence about what occurred at two meetings on 4 and 6 December at which many posts were discussed and which led to a decision to delete the two Team Leader posts.  The ET held at paragraph 24:

“The Tribunal was left with a very hazy picture in respect of the way in which the decision was taken to remove the two Team Leader management posts from the first plan for restructure and at whose instigation.”

 

16.              At paragraph 27 the ET held:

“Following what was referred to as a final last plea from the IT Manager Mr O’Reilly, a decision was taken to reverse the deletion of the Collection Management and Development Team Manager post.”

 

17.              The ET recorded that there was a “fluid” situation with voluntary redundancies and that they were left with:

“a very patchy and unsatisfactory picture in reply to the Claimant’s serious accusation that what lay behind this [the removal of the originally proposed User Service Team Leader post] was a removal of her involvement in Trade Union Activities.”

 

18.              On 15 January 2013 the final restructure was announced. 

 

19.              On 17 December 2012 the Claimant had raised a grievance about the removal of the User Service Team Leader post.  Her grievance was dismissed as was the appeal from its dismissal.  The ET recorded in paragraph 34 that in the grievance appeal investigation it was said that:

“due to the skills and experience required of the User Services Team Leader post, it was a slim possibility anyone other than the Claimant would have been successful in being appointed to it.”

 

20.              On 21 February 2013 a redundancy panel chaired by Professor Campbell the Pro Vice-Chancellor met to consider the proposal that the Claimant’s post be made redundant and that she be dismissed for redundancy.  The ET held that the record of the meeting indicated that the Claimant complained that the new post had been deleted because of her trade union activities.  This was never addressed by Professor Campbell and the panel.  The ET observed that no satisfactory explanation was given as to why he did not deal with the allegation.  The panel decided that the Claimant be dismissed for redundancy.

 

21.              The Claimant appealed against her dismissal.  The appeal was an external consultant heard by Mr Webster and was dismissed as was her appeal from the dismissal of her grievance. 

 

The Relevant Statutory Provisions

22.              Trade Union and Labour Relations (Consolidation) Act 1992:

 

Section 146:

“(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of -

…

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

 

Section 148:

“(1) On a complaint under section 146 it shall be for the employer to show  what was the sole or main purpose for which he acted or failed to act”

 

Section 152:

“(1) For purposes of [Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee -

…

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time,”

 

Employment Rights Act:

Section 98(1):

“In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

 

Section 98(2):

“A reason falls within this subsection if it -

(c) is that the employee was redundant, or”

 

 

 

Section 98(4):

“Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

 

Section 98 (6):

“Subsection (4) is subject to -

(b) sections 152, 153 , 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).”

 

The Decision of the ET

Claim under TULR(C)A section 146

23.              The ET held in paragraph 52 that a prima facie case that the Respondent had subjected the Claimant to a detriment had been made out.  The detriment was deleting the post of User Service Team Leader on 6 December 2012 and confirming that decision on 15 January 2013.  The ET held that had that post remained in the structure there was a substantial chance the Claimant would have been redeployed into it.  In Paragraph 55 the ET summarised their findings of fact regarding the Vice-Chancellor’s animosity towards and dealings with the trade unions.  They held:

“The Vice-Chancellor indicated his desire to derecognise a union at this sensitive period, and the union to which the Claimant belonged.  This strong degree of hostility to the unions held by the Vice-Chancellor provides fertile ground for the inference that the removal of the post the Claimant was likely to secure was connected to his antipathy to her involvement in union activities.  The re-instatement of the other, twin managerial post shortly after the deletion of the Service User Team Leader post was, at best, an unhelpful turn of events for the respondent, given the stated requirement to delayer compatibly  with other departments.”

 

The ET then asked themselves whether the Respondent had shown that the sole or main purpose for which they acted was for the reasons advanced in its defence.

24.              The ET recognised that the removal of the User Services Team Leader post coincided with the objective of finding savings in order to retain other posts and was in accordance with the removal of middle management posts.  The ET asked themselves whether that compatibility was a satisfactory answer to the complaint or whether it concealed a more malign principal purpose. 

 

25.              The ET set out in paragraph 58 a summary of the unsatisfactory features of the Respondent’s evidence or lack of it for the reason for deletion of the post.  Amongst those features referred to in paragraph 58 were inconsistencies and inaccuracies in the evidence.  The ET criticised as seriously misleading Professor Campbell’s statement that he had no previous involvement before 18 December in the decision to delete the post when he had been at the critical meetings on 4 and 6 December when that decision was taken.  The ET observed that the evidence of those critical meetings, the decision making process and how the removal of the post came about left much to be desired.  The ET observed that they would have expected the Vice-Chancellor to give evidence countering the serious allegation that the reason for the removal of the post was the Claimant’s trade union activities.  The ET held at paragraph 59:

“Whilst the removal of the post would have raised finances to salvage other posts and achieved a compatibility of removing middle management functions, we are not satisfied, on the evidence presented, that the respondent has established that such were the principal purposes for which that decision was made, pursuant to Section 148 TULRCA.  The circumstantial evidence in support of the claim under Section 146 of TULRCA is compelling, and that claim is made out.”

 

Unfair Dismissal

26.              The ET dealt with the claim of unfair dismissal quite shortly.  At paragraph 62 they held that because of the “unsatisfactory quality of the evidence called by the Respondent, together with the absence of material evidence” they were not satisfied that the sole or principal reason for the dismissal was that the Claimant was redundant.  The ET held:

“We draw the inference that Professor Campbell did not address the claimant’s complaint because there were matters which he did not wish to identify in such an enquiry which would have been harmful to the respondent.  We also draw the inference that the Vice-Chancellor has not given evidence for similar reasons.  We are satisfied, therefore, that the claim under Section 152 of the TULRCA is made out.”

 

27.              In paragraph 63, the ET held that in their view Professor Campbell could not be seen to be sufficiently impartial.  Also he unreasonably failed to address the Claimant’s complaint about the reason for the deletion of the post to which she had a reasonable expectation of being redeployed.  Further, Mr Webster, who heard the Claimant’s appeal from her dismissal, was close to the Vice-Chancellor.  They considered that this tarnished the appearance of impartial consideration of the appeal.  For these reasons the ET would have considered the dismissal unreasonable even if the Respondent had established a potentially fair reason for the dismissal.

 

Submissions of the parties, discussion and conclusion

Claim under TULR(C)A section 146

28.              This issue in the appeal from the finding of breach of TULR(C)A section 146 is whether the ET erred in their approach in determining whether the reason for the withdrawal of the User Services Team Leader post, to which the Claimant had a good chance of being redeployed, was her trade union activities.

 

29.              At the heart of the submissions made by Mr Gorton QC was that the ET erred by failing to make a finding on the reason for the decision of the Vice-Chancellor’s Group (“VCG”) on 6 December 2012 to delete the User Services Team Leader post.  He contended that this was the material decision as all that happened thereafter on 17 December 2012 and 15 January 2013 was a confirmation of that decision.  The Vice-Chancellor was merely one of 6 members of the VCG.  Accordingly any criticism of his behaviour and his failure to give evidence to the ET is not to the point.  It is what was in the minds of the VCG which should have determined the finding on the reason for the impugned decision to delete the post.  The ET failed to make such findings.

 

30.              Mr Gorton QC drew attention to the judgment of the Court of Appeal in Co-Operative Group Ld v Baddeley [2014] EWCA Civ 658 in which Underhill LJ stated at paragraph 59 that there may be cases where a Tribunal has to make a serious finding on the basis of circumstantial evidence.  However in such a case it was important that it makes clear what the circumstances are which are said to justify the finding.  Mr Gorton QC submitted that this ET failed to do so.

 

31.              When challenged by Mr Prior that a Meek ground of appeal was not permitted to proceed to a Full Hearing, Mr Gorton QC did not accept that such a ground of appeal had been “knocked out”.

 

32.              No Meek ground of appeal is in the part of the Notice of Appeal which challenges the decision of the ET on the TULR(C)A section 146 claim.  A Meek ground of appeal was set out in paragraphs 21.1 and 21.2 of the Notice of Appeal, in the section challenging the finding of unfair dismissal.  However these, too, were not permitted to proceed to a Full Hearing.

 

33.              Langstaff P dismissed the Meek ground of appeal for reasons explained in paragraph 19 of the Rule 3(10) Judgment. .

 

34.              The order of Langstaff P makes it clear that the appeal from the finding of unfair dismissal is to be determined in accordance with the issues identified in his Judgment.  Langstaff P had held that a party who produces inadequate evidence cannot complain that the ET did not decide with sufficient clarity who the decision maker was and what the particular reasons for that decision may have been.

 

35.              There was no appeal from the dismissal of the Meek ground of appeal.  I accept the submission of Mr Prior that this ground of appeal was not permitted to proceed to this Full Hearing.  Unlike Baddeley, the Meek challenge to the adequacy of the ET’s reasons is not a live ground of appeal.

 

36.              Mr Gorton QC drew attention to the judgment of the Employment Appeal Tribunal (Elias P as he then was) and members in ASLEF v Brady [2006] IRLR 567 in which the EAT agreed [78] that:

“… in principle there is indeed a difference between a reason for the dismissal and the enthusiasm with which the employer adopts that reason.”

 

Accordingly it was submitted that whilst the Vice-Chancellor may have welcomed the decision of the VCG to delete the new post to which the Claimant was suited that did not answer the question of what was the reason why the collective body, the VCG, took that decision.

 

37.              The ground of appeal challenging the finding under TULR(C)A section 146 that the reason for the detriment of the withdrawal of the post of User Services Team Leader is that:

“16… the ET [misdirected] itself entirely in relation to the issue of why the USTL post was not ‘incepted’ i.e. the burden of proof, the drawing of inferences and the explanations (satisfactory or otherwise) provided by A”

 

38.              Mr Prior submitted that the section 146 claim could have been decided by the ET on the basis of the burden of proof.  The Claimant had established a prima facie case that the Respondent had subjected her to a detriment for the sole or main purpose of penalising her for pursuing trade union activities.  Pursuant to TULR(C)A section 148(1) it was then for the employer to show what was the sole or main purpose of withdrawing the post of User Services Team Leader.  This the Respondent had failed to do.  Mr Prior submitted that the ET did not misdirect themselves in considering the claim under section 146.

 

39.              In my judgment the ET did not err in their consideration of the claim under TULR(C)A section 146.  Once the Claimant has established a prima facie case that the claim falls within the section, it is for the employer to show what was the sole or main purpose of the detrimental act of which complaint is made, in this case, the decision to withdraw the post of User Services Team Leader to which the Claimant had a good prospect of being deployed when her own post was deleted.   The ET rightly considered whether the Claimant had made out a prima facie case under section 146.  They then considered whether the Respondent had shown that the sole or main purpose of their challenged act was as they alleged.  On the evidence presented to them the ET concluded that they were not satisfied that the reason advanced by the Respondent, redundancy, was the principal purpose for the impugned decision.  The ET adopted a correct approach to the claim under TULR(C)A section 146.

 

40.              An ET is entitled to draw inferences from the evidence presented to them.  As explained in paragraph 55 of their Judgment the ET relied on circumstantial evidence to decide that the Claimant had established a prima facie case under section 146.  All that the ET then was required to do was to consider section 148.  Their decision that the Respondent had not established that the purpose of the withdrawal of the post was redundancy, as they alleged, was sufficient to support the conclusion that the claim under section 146 succeeded.

 

41.              No perversity argument was allowed to proceed to a Full Hearing of this appeal.  The ET did not err in their approach to deciding either that the Claimant had established a prima facie case under section 146 or in holding that the Respondent had not established their alleged purpose in withdrawing the post at issue.  The appeal from the finding that the Claimant was subjected to a detriment by the Respondent in deleting the User Service Team Leader post for the sole or main purpose of preventing her from taking part in trade union activities is dismissed.

 

Claim of Unfair Dismissal

42.              Mr Gorton QC contended that the ET erred by reasoning that because the Respondent had not established that the sole or principal reason for dismissal was that which is advanced by it, redundancy, therefore the claim that the Claimant was dismissed for taking part in trade union activities was made out.  The consequence of an employer not establishing that the reason for dismissal was not as he alleged and failing to establish a reason falling within ERA section 98(2) is a finding of “ordinary” unfair dismissal.  It is only if the Employment Tribunal finds that the dismissal was for trade union activities that the dismissal would be regarded as “automatically” unfair under TULR(C)A section 152. 

 

43.              Mr Gorton QC submitted that the ET erroneously applied the same approach to ERA section 98 as it had applied to section 146.  The approach required to be applied to each of the claims was different.  In a claim under section 146, once the Claimant had established a prima facie case, he would succeed unless the Respondent established that the reason for the detriment alleged was not trade union activities.  By contrast, if a Respondent does not establish that the reason for dismissal is as he alleged, as the Court of Appeal held in Kuzel v Roche Products Ltd [2008] IRLR 530, it is not correct to say that the ET must find that if the reason was not that asserted by the employer, then it must have been the reason asserted by the employee.

 

44.              Mr Prior submitted that the ET had well in mind the difference in approach required to be given to claims under TULR(C)A section 146 and to unfair dismissal claims under TULR(C)A section 152.  Counsel referred to paragraph 50 of the Judgment in which the ET referred to the correct approach to be taken by at ET faced with two competing assertions as to the reason for dismissal in an unfair dismissal case.  After referring to Maund v Penwith District Council [1982] ICR 143 the ET continued in paragraph 50:

“Where employees are arguing that the real reason is that it [the dismissal] was automatically unfair for impugned trade union related reasons, there is an evidential burden to show that this question requires investigation.  Once that evidential burden is discharged the burden reverts to the employer who must prove, on a balance of probabilities, which of the competing reasons was the principal reason for the dismissal.  In Kuzel v Roche Products Limited [2008] ICR 779, the Court of Appeal was considering the comparable situation in respect of protected disclosures and automatic unfair dismissal under Section 103A of the ERA.  It followed the guidance given in Maund but added that a Tribunal could come to the conclusion that the reason for the dismissal was not the one advanced by either party.  In that event the respondent would have failed to discharge the burden of proof, the dismissal would be unfair but not for the automatically unfair reason.”

 

Mr Prior contended that having set out the correct approach to deciding the reason for dismissal for the purposes of an unfair dismissal claim there must be a sound basis for holding that the ET failed to apply their self-direction.

 

45.              Mr Prior submitted that paragraphs 56 and 59 of the Judgment show that the ET made a positive finding as to the reason for the Respondent taking the actions which led to the dismissal of the Claimant.  He contended that this finding applied to TULR(C)A section 152 and ERA section 98 as well as TULR(C)A sections 146 and 148.  Further, counsel contended that in paragraph 62 the ET drew permissible inferences from the evidence and lack of it which supported the Claimant’s contention that decisions leading to her dismissal were taken because of her trade union activities.  This showed that the ET applied the approach in Kuzel.  Their decision is to be read as a positive finding for the purposes of ERA section 98 as well as TULR(C)A section 152.

 

46.              In a claim for unfair dismissal under ERA section 98 it is for the Respondent employer to show that the reason for dismissal:

“… is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee  held.” [98(1)(b)]

 

The statutory requirement is for the employer to show that the reason for dismissal fell within those specified in ERA section 98(1).  If the employer fails to do so the dismissal will be held to be unfair.  This is colloquially called “ordinary” unfair dismissal.  If section 98(1) is satisfied the ET considers the fairness of the dismissal under section 98(4).

 

47.              If the employer does not establish that the reason for dismissal falls within section 98(1) in most cases that is the end of the determination of the unfair dismissal claim.  The claim succeeds without further need for fact finding and decision by the ET.  There will be a finding of “ordinary” unfair dismissal.  It is only if the Claimant has alleged under TULR(C)A section 152 that the reason for dismissal was that he or she had taken part in this case in trade union activities that the ET has to decide whether the reason for dismissal was those activities.  A similar principle applies to allegations that a dismissal was for making a protected disclosure.  Dismissals for those reasons lead to a finding of “automatic” unfair dismissal without the need to consider the general fairness of the dismissal under ERA section 98(4).

 

48.              As the Court of Appeal in Kuzel explained, where an allegation of dismissal for making a protected disclosure is made, the failure by the employer in establishing that the reason for dismissal was that which he asserted does not necessarily lead to a finding that the reason must be the competing reason advanced by the employee.  Mummery LJ held:

“(59) The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was.  If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was.  But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee.  That may often be the outcome in practice, but it is not necessarily so.

(60) As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it.  It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side.  In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced led by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.”

 

49.              The ET in the Claimant’s case set out in paragraph 62 their reasoning on her unfair dismissal claim under TULR(C)A section 152.  They said:

“… we are not satisfied that the sole or principal reason for the dismissal was that the claimant was redundant…”

 

In concluding that the claim under section 152 was made out, the only other matters they referred to were their inference that Processor Campbell did not address the complainant’s complaint about the withdrawal of the User Services Team Leader post because there were matters which he did not wish to identify which would have been harmful to the Respondent and that he did not give evidence for that reason.

 

50.              In my judgment the ET proceeded from a finding that the Respondent had not established that the sole of principal reason for the Claimant’s dismissal was that he was redundant to being satisfied that the Claimant’s competing claim that she was dismissed for trade union activity was made out.  I am reinforced in this view by the Tribunal’s statement of what is established by Maund v Penwith District Council [1982] ICR 143.  In their self-direction on the law, the ET at paragraph 50 observed of Maund:

“Where employees are arguing that the real reason is that it was automatically unfair for impugned trade union related reasons, there is an evidential burden to show that this question requires investigation.  Once that evidential burden is discharged the burden reverts to the employer who must prove, on a balance of probabilities, which of the competing reasons was the principal reason for the dismissal.”

 

This self direction does not set out the correct approach as explained in Kuzel.

51.              The ET therefore erred in concluding that the claim under TULR(C)A section 152 was made out.  They misdirected themselves in law.  Applying a correct approach they may have reached the same conclusion but they may not.  The appeal from the finding of “automatic” unfair dismissal for taking part in trade union activities succeeds.

 

52.              In paragraph 63 the ET made a finding that even if the Respondent had established a fair reason for dismissal they would have considered the dismissal unreasonable because Professor Campbell could not be seen to be sufficiently impartial.  In this context the ET refer to his earlier involvement in the decision making process to remove the User Services Team Leader post and failure to address the Claimant’s complaint that the post had been deleted because she was a strong candidate and had taken part in trade union activities.  The ET deal with these matters in paragraph 37.  They speculate that Professor Campbell did not deal with the complaint because he was embarrassed at having been present at the meeting on 6 December 2012.  Reference was also made to his “possible involvement” in the impugned decision giving the appearance of being compromised in taking the decision on the Claimant’s redundancy.  The ET also refer to Mr Webster’s closeness to the Vice-Chancellor.  I agree with the criticism made by Mr Gorton QC of this reasoning made in paragraph 25.4 of the grounds of appeal.  The observation, if it is to be regarded as a finding, that had the ET found that there was a fair reason for dismissal they would have considered it to be unreasonable is unsupported by the reasoning in paragraph 63 and is set aside.

 

 

 

 

 

Disposal

53.               

(1)     The appeal from the finding that the Claimant was subjected to a detriment by the Respondent contrary to the Trade Union and Labour Relations (Consolidation) Act 1992 section 146 is dismissed.

(2)     The appeal from the finding that the dismissal of the Claimant was unfair by reason of Trade Union and Labour Relations (Consolidation) Act 1992 section 152 is allowed.

 

54.              Counsel have made written submissions on the Tribunal to which the unfair dismissal claim is to be remitted.  Mr Prior submitted that the unfair dismissal claim should be remitted to the original Tribunal as they have heard and read the evidence and have made findings of fact which a new Tribunal cannot overturn.  Mr Gorton QC submitted that the unfair dismissal claim should be remitted to a different Tribunal.  He referred to the considerations on the composition of the Tribunal to which a claim is to be remitted as set out by Burton P in Sinclair Roche & Temperley v Heard [2004] IRLR 763.  In a passage relied upon by the Court of Appeal in Taylor v OCS Group [2006] IRLR 613, the court relied upon paragraph 46.5 of Sinclair Roche.  Lady Justice Smith held:

“… we do not think that justice could be seen to be done if this matter were to be remitted to the same tribunal. Where an ET has reached such a clear conclusion, it is expecting too much of them to ask them to go back and to reconsider that conclusion with an open mind.”

 

55.              The original Tribunal heard evidence and made findings of fact.  Those remain in place.  The decision on the detriment of deleting the User Services Team Leader post which was finally confirmed on 15 January 2013 also remains.  However the claims of detriment under TULR(C)A section 146 and for unfair dismissal whether ‘automatic’ or ‘ordinary’ are different.  The detriment relied upon ended on 15 January 2013.  The dismissal took place on 22 February 2013.  What is relevant to the unfair dismissal claim includes events after 15 January 2013.  Further, as explained earlier in the Judgment, the Employment Tribunal is required to take a different approach to the different decisions on whether the reason the Claimant was subjected to a detriment under section 146 and whether she was dismissed for taking part in trade union activities and ‘automatically’ unfairly dismissed.  In the former, if the employee establishes a prima facie case that they were subjected to a detriment by reason of their trade union activities they will succeed unless the employer establishes a different reason for the detriment.  In the unfair dismissal claim in which the employee asserts that she was dismissed for trade union activities the consequence of the employer not establishing a reason for dismissal falling within ERA section 98(2) is not necessarily that the Claimant was dismissed for the reason asserted by her.  The Tribunal can decide that the employer has not established such a reason.  It does not necessarily follow that the reason is that asserted by the employee.

 

56.              The Employment Tribunal dealt very briefly with the unfair dismissal claim.  In my judgment there is a real risk that justice would not be seen to be done if the same Tribunal were asked to reconsider their conclusion.  Approaching the issue with an open mind would be to require them to be open to the possibility that they were wrong on the first occasion.  Having remitted the claim in Sinclair Roche to the original Tribunal, Burton P on a review hearing, altered that decision to avoid an appearance of pre-judgment.  Although in this case, unlike that of Sinclair Roche, there is no suggestion of appearance of bias, in order to avoid any appearance of pre-judgment, in the interests of justice the claim of unfair dismissal, both for a TULR(C)A section 152 reason and ‘ordinary’ unfair dismissal will be remitted to a differently constituted Tribunal to determine that claim in accordance with this Judgment.

 

57.              Accordingly:

(3)     The claim of unfair dismissal under TULR(C)A section 152 and section 98 Employment Rights Act 1996 is remitted for rehearing before a differently constituted Employment Tribunal.  

 

58.              The application by the Appellant for costs from the Claimant Respondent to the appeal under Rule 34A(2A) Employment Appeal Tribunal Rules 1993 as amended is refused.  The appeal from the finding that the Claimant had been subjected to a detriment by reason of her trade union activities was dismissed.  That claim was relevant to although by no means determinative of the appeal from the finding of unfair dismissal by reason of TULR(C)A which succeeded.  The Claimant was justified in resisting the entire appeal.

 

59.              The parties had been informed that circumstances have unfortunately led to a delay in delivering this judgment.