Employment Judge DaleyMr Christian Octoo (instructed by OH Parsons Solicitors) for claimantDate 15 August 2023
JUDGMENT
(i)The claimant’s claim under Section 146 of the Trade Union and Labour Relations (Consolidation)Act (TULRA) 1992 fails and is dismissed. (ii) The claimant’s claim for an order in respect of unlawful deduction of wages under Section 13 of the Employment Rights Act 1998 is also dismissed.
REASONS
[1]In these proceedings, the claimant’s claim is brought under Section 146 of TULRA 1992 he claimed that he was disciplined by being given a written warning on 13 December 2021, for failing to attend a meeting, in his capacity as Health and Safety Representative, a role that was allocated to him as a trade union official. He also claims for unlawful deduction of wages pursuant to Section 13 (1) of the Employment Rights Act 1996.[2]The respondent denied the claimant’s claims in their entirety. The procedural history[3]The claimant applied for ACAS early conciliation on 8 December 2022. On 18 February 2022 the early conciliation period ended.[4]The claimant issued his ET 1 on 18 February 2022. On 30 August 2022, following an application being made, and granted, for an extension of time to file their ET3, the respondent filed their reply.[5]A Case Management Hearing was held on 17 March 2023.[6]The claimant’s claim was listed to be determined on 12 and 13 July 2023. All the parties attended by Video-Link. On morning of the hearing, the Respondent’s representative made an application for one of their witnesses, Mr Leroy Webley, who had dealt with the claimant’s grievance/appeal to give his evidence from abroad. Mr Webley was in Jamaica.[7]The Tribunal in accordance with a practice direction could only hear evidence from a witness from abroad if prior permission had been sought, or if the country had given in principle permission to hear evidence from abroad (a green light country). Although Jamaica had been approached for permission no response had been received. As no permission had been sought for Mr Webley to give evidence from abroad. Accordingly, Mr Webley was informed that the Tribunal could not hear his oral evidence. We would however consider his witness statement and decide what weight to attach to it.[8]The Tribunal noted that Mr Webley was due to return the UK the following day, it was, however for the respondent to decide whether he would be called as a witness on his return.[9]Due in part to the delayed start on the first day of the hearing and to insufficient time to deliberate and issue judgement. We informed the parties that the hearing was adjourned, and judgment would be reserved.
The Issues
[10]This case had not been listed for a case management hearing, and there was no agreed list of issues. However, the issues have been set out as the Tribunal understood then to be, and which I consider relevant, to the Tribunal in reaching its decision. Was the claimant subjected to a detriment within the meaning of Section 146 of TULRA 1992? If so, was the sole or main purpose of the detriment to —(a)preventing or deterring the claimant from being or seeking to become a member of an independent trade union, or penalising him for doing so or taking part in the activities of an independent trade union at an appropriate time? If the Tribunal finds that the claimant was subjected to a detriment should compensation be awarded? If so what sum? Should there be any deduction from the award on account of any contribution by the claimant to any action taken by the respondent? Was the claimant subjected to an unlawful deduction of wages within the meaning of the Employment Rights Act 1996. The Hearing Attendance
The Hearing
[11]The hearing was held by CVP, and all those who attended, attended by Video-link on the two dates listed above. Mr Islam attended and was represented by Mr Ocloo of OH Parsons Solicitors. The respondent company was represented by Ms Claire Nicolaou a non-practising solicitor. Also in attendance was Mr Leonard Farhall, who gave evidence on behalf the respondent, Mr Webley also attended from Jamaica on the first day, up to the discussions set out in the preliminary matters. The Background[12]The Claimant has been employed as a bus as driver by the Respondent since 19 December 2005 until the present time, on 24 July 2015 the claimant was elected as a Unite, (the union) workplace and health and safety representative. In his further and better particulars, the claimant set out that although prior to his election he had a clean disciplinary record. However, a number of disciplinary actions had been taken against him by his employer since his appointment to his union role. These included amongst other matters, his being disciplined for refusing to drive a bus which he considered had a fault which made it unsafe in October 2016, and on 23 May 2019 being suspended for taking longer than 15 minutes to discuss, a case with a fellow employee.[13]It was accepted by the claimant’s representative that these incidents, in which disciplinary action had been taken against the claimant were provided as background, as, although they were not disputed by the respondent, we did not have to consider and make a finding in relation to these matters, as it was accepted that any claim in respect of them was out of time.[14]The claimant alleged as part of his claim that on 5 November 2021 he was informed by the operations manager that he was required to attend a demonstration of new technology that the respondent wished to implement called the Mobile Eye, in his capacity as health and safety representative. This demonstration was to be held at the Holloway Garage at 8am on 10 November 2021. When he was required to attend such meetings there was an established process, Firstly the respondent confirmed attendance by Outlook Calendar Invitations. This was then confirmed by Duty Allocation and Driver Management Software (“DAS-Web”) and the claimant was then stood down from his shift.[15]Prior to the meeting on 10 November 2021, the claimant checked his outlook and there was no invitation, he then tried to make enquires about whether the meeting was going ahead, as he had been allocated a shift at the same time the meeting was due to take place. As the meeting was not confirmed in the usual way and he had been allocated a shift, the claimant attended his place of work and undertook his shift instead of attending the meeting.[16]It was accepted by the respondent that a mistake had been made, and that the arrangements for the demonstration had not been confirmed. Neither had the respondent stood him down from duty occurred by using the established procedure. As a result, the claimant had been allocated a shift. However, the respondent asserted that the claimant ought to have attended the meeting, and that his failure to attend the demonstration was a failure to follow management instructions.[17]As a result, disciplinary action was taken against the claimant which resulted in his receiving a written warning on 13 December 2021 for his “attitude and demeanor.” The claimant appealed against this decision and also brought a grievance against his employer. The grievance and appeal were not upheld by Mr. Webley, and the written warning was confirmed on 9 February 2022.[18]The claimant’s claim is that this is in breach of Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.[19]The claimant also claimed for unlawful deduction of wages in the sum of £49.97. This claim arose as a result of the Disciplinary Hearing. The claimant’s disciplinary hearing was set for 1 December 2021. However, it had to be rescheduled due to the nonavailability of his union representative, and he was not offered an alternative shift or otherwise re-imbursed the claimant claim is for the sum he would have earned. The full details of the claimant’s claim for loss of wages are set out in the evidence below. The Evidence The Claimant’s evidence
The Evidence
[20]We heard from Mr Islam; he produced a witness statement which comprised 25 paragraphs. In his witness statement he set out the background information which led to disciplinary action being taken.[21]He told us that he was the trade union and safety representative for Holloway and that to facilitate this he was stood down from his bus driving duties every Friday to attend to union matters on behalf of his members.[22]In paragraphs 14-15 of his witness statement, he set out that-: “Usually, I was informed of meetings I had to attend, in my role as a Trade Union Representative, on Fridays, via the Outlook Calendar Invitation. I was then informed separately in the Respondent’s DAS web application that I would be stood down from my driving duties. The invitation is confirmed by the Duty Allocation and Driver Management software (DAS-Web), and I am then stood down from my shift to attend the meeting. However, if I was not stood down from my shift, I could not attend the meeting. I was allocated to carry out my shift duty of bus driving for the same time and date as the Mobile Eye Demonstration meeting. I spoke with Mr Cabral and Mr Bowyer to ask whether I was to stand down. I was informed that I was scheduled to work that shift and the allocation department had not been told any different.”[23]In his evidence he told us about how the demonstration for the Mobile Eye, came to be arranged. He told us that he received information from the convenor of Unite that the device was due to be fitted in Perivale, Kings Cross and Holloway. No information had been provided to him about this by the respondent. He stated that he had seen the device being fitted and union members had asked him about it. As a result, he had written to the convenor and had asked to attend a meeting with the Head of Transport and Safety. He stated that he had done his own research on Mobile Eye using google. He had told Mr Webley that he would speak to his members about it. It was part of what he described it as part of Clean Road Technology. He was asked about the Union’s position concerning the technology. He accepted that there were members who were against it, however this was not unusual as there were several members who were always against innovation. However, he stated that the Union did not have a position concerning Mobile Eye.[24]He explained that on 5 November 2021 he was told by Joannis Evlogimenos, that he was required to attend the meeting at 8am on 10 November and that after this he was required to return to the garage to complete his shift. We were referred to the official report provided by Mr Evlogimenos dated 11 November 2021, which set out that he had not attended, and Mr Evlogimenos, had considered him to be dismissive, when confronted about his non-attendance.[25]In his evidence, the claimant set out that he had also tried to contact Mr Evlogimenos, and had been unsuccessful, Mr Evlogimenos had returned his call, however he had been on shift and was not able to use his phone during his shift. He was asked why he had not used WhatsApp or Bling or Messager. The claimant explained that he did not use these apps.[26]In respect of his claim for loss of earning he set out that his loss of earnings relates to the disciplinary process. He set out that he had attended the meeting on 1 December 2021, following his lunch break. He had been mistaken about the time, as he had originally thought the hearing was scheduled for 3pm. He in fact attended 40 minutes late and had informed Mr Farhall that the meeting could not take place as his union representative could not attend that day.[27]Mr Farhall had rescheduled the disciplinary hearing.[28]He stated that “... Mary Summers had sent an email to Area Operations Director, Ian Dalby on the 27th of November 2021. Mary Summers had stated in her email that she would not be able to attend the disciplinary hearing and stated that the meeting had to be scheduled. I did attend the venue for the disciplinary hearing, and at the venue I pointed to Mary Summers email. Len Farhall, who was to conduct the disciplinary said that the Director, Ian Dalby had not informed them that Mary Summers could not attend and that they were to cancel the Meeting. I had to attend as the remainder of my duties for the day, however mu duties had been taken away from me and Len Farhall said I would not be paid for my loss of income. He said firstly, because I was late and secondly, because the meeting was to be rescheduled. To date I have not been paid for my loss of income for that day. “[29]He was asked why he had not telephoned to re-arrange the meeting, and why he had arrived 40 minutes late, if he thought that the meeting was for 3pm. He explained that he had become aware of the meeting time and had not been able to get to Wood Green, within the time allocated after his break.[30]The claimant was asked about the effect of the disciplinary action on him. He stated that it had had a “chilling effect on him.” In paragraph 23 of his witness statement, he stated “... As a result of the treatment, I suffered at the hands of Respondent, I was under severe stress. It seemed to me that no matter what I did in my Union duties, the Respondent would target me. I ended up not representing members at formal meetings, instead I left those union duties to my deputy because of the stress and the fear Management actions caused me.”[31]“24. It felt extremely distressing because there was no valid reason for what was done to me. I tried to set it all aside to do what I needed to do to assist the members of the union. Then the Mobile Eye issue happened, and it occurred to me that they were targeting me. I was distraught as I could not see why I was being targeted, when in my view I was simply making the workplace better for all of us.[32]Members saw me as a person who always stood by them and always took their concerns to management. Issues through the pandemic, getting a porta cabin for staff when there were limited facilities due to social distancing and many other things which I believe I achieved to make the workplace a better place. However, the manner in which I was treated was humiliating.”[33]He stated that he had taken a step back from the Union, however he had been asked by his colleagues to step back and to go for the position of convenor.[34]In answer to the Tribunal questions, he confirmed that he had never attended a union meeting without being formally stood down from his duties. The Respondent’s Evidence[35]At the hearing, we heard from Mr Farhall, the operations manager on behalf of the respondent. We also considered the written witness statement of Mr Webley.[36]Mr Farmall's statement which was unsigned and undated consisted of 23 paragraphs. In his statement he set out that he was the manager who conducted the disciplinary hearing on behalf of the respondent, and that it had been his decision to issue the claimant with a written warning. He told us that he also produced the notes of hearing from the disciplinary meeting.[37]In his witness statement at paragraph 3 c- f, he set out the respondent’s case concerning the disciplinary action. “c. The Claimant, Mr Islam, is a long serving employee at Metroline; the records show he joined in December 2005. Mr Islam is a bus driver at Metroline’s Kings Cross garage. He is also a trade union representative on behalf of our recognised union, Unite, and a health & safety representative. When engaged either in trade union or health & safety activities Metroline employees are stood down from their bus driving (or other) duties, because these activities take precedence over their normal day job. d. Every Friday Metroline’s management has a meeting with its Unite representatives. At pages 55 to 56 there is an Official Report from one of the OMs at Kings Cross, Mr Evlogimenos, stating that at the meeting on Friday 5 November he informed Mr Islam that he was required to attend a meeting at Holloway garage the following Wednesday. This meeting, which Mr Islam was to attend in his capacity as Health & Safety representative, was to see a demonstration of a new technology for buses called “Mobile Eye,” a novel collision avoidance system for Metroline’s bus fleet. e. Mobile Eye is a crucial piece of technology that Metroline was rolling out across its fleet in late 2021 and early 2022. It comprises two cameras that fit onto the dashboard and which alert drivers to any hazard ahead of them that they may not have spotted. Mobile Eye is therefore a key system for improving the safety of drivers, their passengers and members of the public, and this meeting was set up between Metroline, Mobile Eye and Transport for London. As the health & safety representative for Kings Cross Mr Islam was required to attend the meeting so that he would be able to explain the new system to the drivers, answer their questions and feedback queries or concerns to Metroline’s managers. f. Mr Evlogimenos’s report stated that Mr Islam failed to attend the meeting and instead completed his allocated bus duty, and that he subsequently told Mr Evlogimenos that it was his fault because he had not stood Mr Islam down. The report also stated that Mr Evlogimenos told Mr Islam that he ought to have attended the meeting regardless and that, as such he had failed to comply with a reasonable instruction. “[38]Mr Farhall set out that the claimant’s actions had been a clear breach of the respondent’s disciplinary policy, in particular paragraph 2.2 which referred to following the reasonable and lawful instructions of authorised supervisors and managers. He stated that the claimant had a very important role of Health and Safety representative and that it was important that the information received at meetings, such as the Mobile Eye demonstration were fed back to members.[39]He explained how there was a weekly meeting of the managers of the respondents and the union representatives and that to facilitate these meeting and other meetings that the claimant might be required to attend, the claimant is stood down from his duty as a bus driver.[40]He accepted that it was not the claimant’s responsibility to arrange for this to happen. However, in answers to questions in cross examination he stated that the claimant had been requesting information concerning the Mobile Eye and that given this, as the claimant had requested the meeting, he would have thought that he should have” done everything in his power and made every effort to attend the meeting.”[41]He told us that the claimant’s role was very important, and that Health and Safety matters took precedents over bus driving duties. He told us that the claimant was “there on behalf of his members, not management and that in not attending he was just an employee who did not follow management instructions. “When he failed to follow instructions, it was detrimental to our reputation.”[42]Mr Farhall told us about the disciplinary meeting which was scheduled to take place on 1 December 2021. He referred us to his letter to the claimant dated 1 December 2021, which set out that “... I set the meeting with 7 days’ notice and within a paid time by the company.” He stated that he had tried to arrange for an alternative shift for Mr Islam however this had not proved possible as Mr Islam had not been able to take the shift which was available as it would have finished after Mr Islam’s normal finish time. “[43]We considered the witness statement of Mr Webley, we noted that it was unsigned, and that Mr Webley had not been cross-examined on the content of the statement. We also noted that the statement was limited in that it dealt mainly with the appeal, Mr Webley in his statement set out his opinion that the claimant may well have been motivated by the Union’s opposition to the Mobile Eye. Mr Webley decided that the respondent’s decision to issue a written warning should be upheld.[44]We heard from Ms Nicolaou in closing, she set out that, even if the Tribunal concluded that the respondent could not instruct the claimant to attend the meeting in his capacity as a trade union official, he had nevertheless been given an entirely reasonable and lawful instruction. She submitted that notwithstanding our findings on this issue, this case was not capable of being a detriment claim. She stated that Section 146 could not be made out as the claimant was not carrying out Trade Union activities when he had been disciplined. If he had been penalised for taking part in the meeting, then this would come within Section 146 of TULRA however he was disciplined because of not attending the meeting.[45]She told us in relation to his claim for unlawful deduction of wages, that the claimant had not informed Mr Farhall that he would not be able to go ahead with the meeting due to his representative not being available. She stated that although Mary Summers had told Mr Dolby she would not be available so he would need to liaise with her colleague John Murphy, however, this had not been conveyed to Mr Farhall.[46]She stated that the claimant had known that Ms Summers was not able to attend the meeting and that the disciplinary could not go ahead. Ms Nicolaou stated that he had not been paid as he had not attended the rest of his shift, and this was the reason for his loss of wages. He had received normal pay for the shift he had worked, he was not entitled to be paid for the time he should have been at the abortive meeting.[47]Mr Ocloo in his closing submissions, referred us to Section 146 of TULRA, he submitted that the provision stated that the claimant was not to be subjected to any detriment by an” act or failure to act”. The issue for the Tribunal was, simple, was the claimant subjected to a detriment by an act or failure to act. He referred to Section 1(b) of Section 146 in that the claimant had not been given clear permission to attend the demonstration. He submitted that the claimant had been deterred from carrying out his duties. He referred to the subjective element of section 146, he submitted that the Tribunal was entitled to find that the sole purpose was to prevent him carrying out his trade union duties.[48]Mr Ocloo stated that as a result of the respondent’s failure to issue the invite and stand him down, the claimant felt that he was in a “no win” position in that if he attended the meeting without the meeting being confirmed he was liable to be subjected to disciplinary action. However, he was also subjected for disciplinary action for failing to attend.[49]In reply. Ms Nicolaou stated that this was not how the claimant had put, there case, it had not been put that the failure to send the invitation to the meeting and to stand the claimant down was anything other than a mistake. The issues and the relevant case law
The issues
[50]The issues in this case were as set out above.
The Law
[51]Detriment on grounds related to union membership or activities. 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 — (a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,(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,(ba)preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or(c)compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.(2)In subsection (1)“an appropriate time” means— (a)a time outside the worker's working hours, or(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities trade union or (as the case may be) make use of trade union services; and for this purpose, “working hours”, in relation to worker, means any time when, in accordance with his contract of employment or other contract personally to do work or perform services), he is required to be at work.[52]Case law concerning TULRA 1993[53]The Tribunal considered the following case as relevant UCL v- Brown UKEAT/0084/19/VP. Although this case has not been specifically referred to in our decision the reasoning was fully considered by us.[54]Was the claimant subjected to a detriment within the meaning of Section 146 of TULRA 1992?[55]The Tribunal was provided with a copy of the outcome of the disciplinary procedure in the form of a copy letter dated 13.12.21. In the letter the respondent stated “...We discussed the matter fully at the hearing and having taken your explanation into account. I have concluded that your performance justifies a written warning. You have agreed that the incident was blameworthy, and you have taken full responsibility...”[56]We were concerned that the wording in the decision letter failed to reflect what had occurred. Neither did it appear to us to reflect the claimant’s position. We noted that the propriety of the serving of a written warning was outside our jurisdiction.[57]However, we were concerned that the respondent although acknowledging that a mistake had been made by them in not confirming the meeting on 10 November 2021, and arranging for the claimant to be stood down from his duties, the respondent sought to attribute the failure of the claimant to attend the demonstration as solely the fault of the claimant rather than accepting responsibility for their role in the mistake.[58]However, the question that we had to ask was whether this was a detriment as a result of the claimant’s membership of a trade union? We heard that the claimant had been designated health and safety representative in his capacity as trade union official. We heard from Mr Farhall that the respondent considered the claimant’s attendance at the meeting to be important as they wanted “buyin” from the unions. The claimant was disciplined as he did not attend the demonstration. Had he not been a trade union official he would not have been in this position.[59]The claimant in his witness statement at paragraph 23. Stated-: “It felt extremely distressing because there was no valid reason for what was done to me. I tried to set it all aside to do what I needed to do to assist the members of the union. Then the Mobile Eye issue happened, and it occurred to me that they were targeting me. I was distraught as I could not see why I was being targeted, when in my view I was simply making the workplace better for all of us”.[60]Having taken this into account we consider that the claimant was subjected to a detriment. We Then considered the next element of the test which was, If so, was the sole or main purpose of the detriment to —(a)preventing or deterring the claimant from being or seeking to become a member of an independent trade union, or penalising him for doing so or taking part in the activities of an independent trade union at an appropriate time?[61]We have carefully considered the detriment to which the claimant was subjected, we have asked whether the sole or main purpose was to prevent or deter the claimant in taking part in the activities of an independent trade union.[62]We heard and accepted the claimant’s evidence that the written warning did have a chilling effect on him. And it appeared to us that the respondent considered that it could instruct the claimant in relation to his union duties. We noted that had this case resulted in a detriment under Section 47 of the Employment Rights Act 1996, that the test for detriment may have been made out in all the circumstances of this case.[63]However, the issue before us was whether the sole or main purpose of issuing the written warning was to prevent or deter the claimant from taking part in the activities of an independent trade union. We have noted the very particular circumstances which gave rise to the disciplinary action, and it was the claimant’s failure to carry out his activities as health and safety representative rather than his undertaking the duties which had led to this result. We accepted that the disciplinary arose in connection with his union duties, however, we needed to be satisfied that the detriment was solely to prevent him in carrying out his trade union role.[64]Mr Ocloo, in his submissions sought to argue that the claimant was at risk of being disciplined had he carried out his role as health and safety representative. However, we heard no evidence to support this, and it appears to us that this was not part of the claimant’s pleaded case. Although we consider that it is inappropriate for the respondent to issue instructions to the claimant in his trade union role, (as one of the purposes of the act is to protect independent trade union representation,) we were told by Mr Farhall that several officials were due to be at the demonstration, including officials from Transport for London on whose behalf the respondent operated its services.[65]Given this, we find that the respondent suffered consternation and embarrassment that there was no health and safety representative, or “union buy in.” This occurred due to the mistake of the respondent, which led to the claimant not attending the demonstration, which caused consternation to the respondent.[66]Although it is our view that the onus was on the respondent to ensure that the claimant could attend and be stood down from his duties, the respondent sought to attribute the failure which led to this entirely to claimant, seeking to suggest that he should have attended in any event.[67]We asked Mr Farhall what was meant by “attitude and demeanour.” Mr Farhall said that in refusing to do something this demonstrated a certain demeanour. We were concerned about this; however, we have born in mind that although the attitude of the respondent in issuing a written warning is open to criticism; however, on the evidence before us, we cannot be satisfied on a balance of probabilities that the sole or main purpose of the detriment was to prevent or deterring the claimant from being or seeking to become a member of an independent trade union or penalising him for doing so or taking part in the activities of the trade union at an appropriate time.[68]We find that in our view it was because the claimant had not undertaken this role, when he had been expected to by the respondent.[69]Accordingly, the claimant’s claim under Section 146 of TULRA 1993 fails. Given this we have not found it necessary to consider the other issues which are linked to Section 146 of the 1993 Act. Was the claimant subjected to an unlawful deduction of wages within the meaning of the Employment Rights Act 1996.[70]We have carefully considered the circumstances in which the claimant, lost the renumeration for part of his shift. We have noted that had the disciplinary hearing taken place then he would have been fully renumerated.[71]Although we are satisfied that Ms Summers told Mr Dolby that she would not be available to attend the hearing on 1 December 2021, this was not communicated to Mr Farhall. The claimant knew that the meeting was unable to go ahead, however he did not telephone to cancel it. We heard that he still attended, albeit 40 minutes late.[72]On being informed that the meeting would have to be postponed, Mr Farhall attempted to find an alternative shift, and although one was found had the claimant worked this shift, he would have finished later than the time his original shift was due to end. We make no criticism of the claimant for declining the shift, however neither do we find that he was entitled to renumeration in the circumstances that arose. The claimant loss income because he attended a meeting which he knew was likely to be postponed and as a result he did not complete his shift. Had the claimant contacted Mr Farhall about the issue that he had with his representative, and had he been required to attend in circumstances were a postponement was inevitable, then the circumstances would have been different.[73]However, we find that it was the claimant was not entitled to renumeration.[74]Accordingly, his claim for unlawful deduction of wages is not well founded and fails.