Ms R Hannan v The Royal Society for the Encouragement of Arts, Manufactures and Commerce: 2200841/2023
EMPLOYMENT TRIBUNALS
Case No 2200841/2023
Between
Ms R HannanClaimantThe Royal Society for the Encouragement of Arts, Manufactures and CommerceRespondent
Before
Employment Judge Ms A StewartDate 12 October 2023
REASONS
Introduction
[1]The Claimant in her Claim Form brought a sole complaint of automatic unfair dismissal under section 152(1)(b) of TURLCA 1992. The Grounds of Resistance denied that she had been dismissed because she had resigned and had been paid up to the end of her 3 month notice period. Neither she nor the Respondent was legally represented at the time of the initial pleadings.[2]This case arises because the Respondent, by letter dated 10 October 2022, terminated the Claimant’s employment with immediate effect, citing an article by her which had appeared in the ‘Observer’ newspaper on the previous day. Her notice period was due to expire on 18 October 2022.[3]The Respondent contends that it was invoking a contractual PILON clause and that this cannot, as a matter of law, constitute a dismissal. The Claimant inter alia disputes the contractual nature of the PILON clause, it’s applicability to herself and its true construction and contends that she was dismissed.[4]The Claimant now seeks to amend her claim so as to include the alternative complaint of having suffered detriment/being penalised by the early termination of her employment before the expiry of the notice period, with immediate effect, within the meaning of section 146(1)(b) of TURLCA 1992. She contends that it is a mere relabeling exercise and that all the material facts are in the existing Claim Form.[5]The Respondent strongly opposes the application. It contends that this is a new, and contradictory claim, is out of time, that the Claimant was tardy in making this application and that the balance of prejudice favours the rejection of the application.[6]The following principal cases were cited in argument before the Tribunal: Selkent Bus Co Ltd v Moore 1996 ICR 836 EAT; Abercrombie v AGA Rangemaster Ltd 2013 IRLR 953 AC; Marshall (Cambridge) Ltd v Hamblin 1994 ICR 362; Vaughan v Modality UKEAT 0147 20BA(V). The Tribunal was assisted by thorough argument from the parties’ representatives. Reasoning and Conclusions7.1 The type of amendment: The amendment sought is not, in the strict sense, the relabeling of an existing claim as something else. Rather, it seeks to add an alternative and parallel claim to the existing one. Both sections 152(1)(b) and 146(1)(b) of TURLCA 1992 relate to taking part in the activities of an independent trade union at an appropriate time. One section is headed ‘Dismissal of employee on grounds related to union membership or activities’ and the other ‘Detriment on grounds related to union membership or activities’.7.2 All of the facts relied upon in support of the amendment sought are contained in the existing Particulars of Claim. The alleged factual ‘detriments’ are set out in detail in paragraphs 20 to 24 inclusive of the original particulars of claim. They include such matters as being cut off in the middle of a Teams meeting with a colleague immediately after receipt of the Respondent’s letter of 10 October 2022, being suddenly barred from access to the SharePoint and email systems; being unable to fulfil pre-arranged meetings and handover activities or to communicate her non-attendance to others; the shock, distress and upset at the tarnish to her professionalism, career and reputation at leaving tasks incomplete; the need to inform her new employer about the early termination and the anxiety and uncertainty as to whether this might jeopardise her new job; the distress at being unable to take proper leave of colleagues and external contacts and feeling she had let everyone down by not leaving things in the best order at her departure. These allegations are entirely discrete from her allegations of unfair dismissal set out in the ET1. No further factual pleading is required or sought by either party.8.1 Timing: The ET1 was presented to the Tribunal on 2 February 2023. This amendment application, made on 23 March 2023, was outside the primary time limit. The Claimant received the Grounds of Resistance on 16 March 2023, which stated an intention to seek to strike out the claim.8.2 Ms Barroso told the Tribunal today that she had found out from Ms Taylor, of the Respondent, at the end of 2022 that the Respondent’s view was that there was a PILON clause and therefore that there was no dismissal. However, upon reading the contract the Claimant’s team felt that there was no such clause applicable to the Claimant. Then, upon receiving the ET3, Ms Barroso asked the Respondent to clarify the basis on which they sought strike out, since it appears to include a time/jurisdiction point, but she did not receive an answer.8.3 The Claimant’s union representatives are not qualified lawyers, although Ms Barroso’s job title is Head of Legal. They obtain pro-bono legal advice as necessary. Upon receipt of the ET3, on 17 March 2023, they obtained Counsel’s opinion and were told that the unfair dismissal claim was strong.8.4 As to the manner of amendment application; the initial application to amend cited a claim under section 146(1)(b) of TURLCA 1992, without including the precise text of the amendment sought, as is good practice, and Ms Barroso said that she could have set this out within 2 weeks of receiving the Grounds of Resistance, although the precise text was only provided at today’s hearing. However, the citation of the section number in itself would have offered reasonable clarity as to the amendment sought in this case.9.1 The balance of injustice, hardship and prejudice: The Respondent contends that the existing unfair dismissal claim is misguided and without merit, hence the Respondent’s intention to seek to have it struck out, and that the Claimant is trying to replace this with a new claim, out of time, which is also without merit and this is highly prejudicial to the Respondent; that the Claimant needs to show a prima facie case of detriment, but that she suffered no financial loss; that if the amendment is allowed, the Respondent will be required to face a claim which it would not otherwise have had to face and that the balance of injustice lies in favour of the Respondent.9.2 However, it appears at this stage, that there are, at the very least, conflicting legal contentions between the parties regarding the existing section 152(1)(b) complaint. Further, it is clear from multiple case law that ‘detriment’ is not confined to financial loss. And no amendment would ever be allowed if a Respondent having to face a new head of claim was determinative of the application per se.9.3 Having regard to the practical implications of the amendment decision in this case: The length and listing dates of the Full Merits Hearing will not be altered if the amendment is allowed; no further pleading is required since the full factual matrix underlying the new complaint is contained within the original Particulars of Claim; no further (or unobtainable) witnesses are required beyond those already envisaged; the Respondent is not taken by surprise by having to face new factual allegations beyond the contents of the original ET1.9.4 If the Respondent’s assessment of the prejudice to be suffered by the addition of a new claim under section 146(1)(b) is predicated upon certainty that the original complaint under section 152(1)(b) will be struck out as having no reasonable prospect of success, this is perhaps premature, since it is notoriously difficult to pass that hurdle, save in the most obvious of cases. Indeed, if the original complaint were to be struck out, the prejudice to the Claimant would be particularly severe if the amendment was not permitted, enabling her to bring a detriment complaint set out factually in full in her Claim Form, albeit without the legal label attached, since she would be left without any possibility of remedy.9.5 Weighing the balance of prejudice in all of the circumstances of this case, the Tribunal concluded that it lay in favour of granting the amendment application. Case Management Orders:[10]The above case management orders were agreed between the parties and the Tribunal following discussion at today’s hearing. Signed:[1]By way of a claim form presented on 02 February 2023 the Claimant brought a claim of unfair dismissal under section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). ACAS early conciliation began on 09 January 2023 and ended on 24 January 2023. By way of a response dated 08 March 2023 the Respondent defends the claim.[2]An application to amend the claim was made at a preliminary hearing on 29 March 2023. EJ Stewart allowed the Claimant to amend her claim to include a complaint that she was subjected to a detriment under section 146(1)(b) TULRCA. The alleged detriment is the curtailment of her notice period, with a payment in lieu.[3]There is a question about whether the Claimant was dismissed. The Claimant resigned on 18 July 2022 and gave three months’ notice. She says that the parties’ intended her last date of employment to be 13 October 2022 due to her taking accrued annual leave.[4]The Claimant is a member of the Independent Workers Union of Great Britain (“IWGB”). The Claimant says that she has been active in trying to have the IWGB recognised by the Respondent. On 08 June 2022 the IWGB applied to the Central Arbitration Committee for statutory trade union recognition.[5]On 03 October 2022 the Claimant says that she was contacted by a journalist who had been passed her details by the IWGB. She subsequently spoke with the journalist.[6]An article was published in the Observer on 09 October 2022 entitled ‘Not living our values’: Royal Society of Arts accused of hypocrisy on staff union’. The Claimant is quoted in this article, which recounts how the Respondent had refused to voluntarily recognise the IWGB on three occasions and that the IWGB had applied for statutory recognition. The Claimant is mentioned in the article in the following terms: “Ruth Hannan, the RSA’s outgoing head of policy and participation and IWGB member, said the RSA was being hypocritical. “The RSA has done a huge amount of work over the past few years on the future of work and what good work looks like – and we’ve given the IWGB an award”, she said. “But the RSA is telling the world one thing, and doing another”. Hannan, who is leaving after more than three years but remaining an RSA fellow, said many of the society’s illustrious former and current fellows would be shocked by its approach to union rights. “They joined the RSA because it is open, pioneering, enabling and optimistic. They would be disappointed to hear we’re not living our values – and that we’ve made life so hard for staff. We are letting down our very high historical reputation”.[7]There is no dispute between the parties that on 10 October 2022 the Respondent wrote to the Claimant. The letter is headed ‘Immediate termination of employment’. It states that the Claimant is not required to attend work for the remainder of her notice period and that she will no longer have access to work systems and premises with immediate effect. The letter says that the Respondent has serious concerns about the comments published in the press.[8]The Claimant says that the letter of 10 October 2022 amounted to a dismissal with immediate effect for taking part in trade union activities. The Respondent says that she was not dismissed.[9]The Respondent applied to strike out the claim under rule 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 on the basis that it has no reasonable prospect of success. In the alternative, it argues that the claim has little reasonable prospect of success and that the Claimant should be ordered under rule 39 to pay a deposit as a condition of continuing to advance her claim.[10]I had a bundle of 127 pages and a separate bundle of 28 authorities. I was assisted by the clear and helpful oral and written submissions from Ms Adipe and Mr Ohringer. Judgment was reserved. Submissions and discussion[11]In Cox v Adecco [2021] ICR 1307 the EAT held that before considering strike out, the Tribunal should make reasonable efforts to identify the claims and the issues to be decided having regard to the pleadings and any core documents that set out the Claimant’s case. As set out above, the issues in this case were clear and were not in dispute by the parties.[12]The Claimant’s case is that she was dismissed or, in the alternative, that she was subjected to a detriment by having her notice period curtailed with a payment in lieu, for engaging in the activities of a trade union. Having identified the claims as above, I considered whether they can be said to have no reasonable prospects of success.[13]The Respondent’s applications turn on the definition of ‘trade union activity’. It submits that the Claimant’s actions in speaking with the Observer journalist do not amount to trade union activity. As such, her claims must necessarily fail.[14]Section 146(1)(b) TULRCA states that ‘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…preventing or deterring him from taking part in activities of an independent trade union at an appropriate time, or penalising him for doing so’. 15. ‘Appropriate time’ is defined in section 146(2) TULRCA. This is time outside the worker’s working hours, or time within working hours specifically set aside for union activities by arrangement or with the consent of the employer.[16]Section 146(5A) TULRCA provides that this section does not apply where the worker is an employee and the detriment complained of is dismissal.[17]Section 152(1)(b) TULRCA provides that the dismissal of an employee shall be regarded as unfair if the reason (or, if more than one, the principal reason) was that the employee…had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time. Appropriate time is defined in section 152(2) as outside working hours or within working hours by arrangement or with the consent of the employer.[18]What is meant by the activities of an independent trade union is not defined in TULRCA.[19]The Respondent submitted that some assistance may be drawn from section 168 TULRCA, which defines the duties for which officials of an independent trade union are permitted to take time off during working hours. They include negotiations with the employer related to or connected with matters of collective bargaining in relation to which the trade union is recognised by the employer, and receipt of information from the employer and consultation by the employer in respect of collective redundancies.[20]Section 168(3) TURLCA provides that the amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.[21]The ACAS Code of Practice on time off for trade union duties and activities including time off for union learning representatives (2010) distinguishes between duties of officials and activities of members. In respect of the activities of a trade union member, it provides at paragraph 37 that these may include attending workplace meetings, meeting full time officers to discuss relevant workplace issues, and voting in union elections.[22]I concluded that section 168 TULRCA was of limited assistance. The section relates to duties rather than activities, and those duties must be those that fall on an employee as a union official. The ACAS Code is of assistance insofar as it gives examples of activities of trade union members but these examples are neither exhaustive nor definitive.[23]In Dixon v West Ella Developments Limited [1978] ICR 856 (EAT), Phillips J held that tribunals should not adopt too restrictive an approach to the interpretation of ‘activities of an independent trade union’, bearing in mind the purpose for which these provisions are intended. He considered that the provisions ‘should be reasonably, and not too restrictively, interpreted’. In Chant v Aquaboats Limited [1978] 3 All ER, it was held that deciding whether dismissal was for the activities of a trade union is very largely a question of fact. Moreover, there must be a clear linking of the activities in question to a trade union. As Kilner Brown J put it in Chant, the provision is not about ‘activities of an individual trade unionist’.[24]In determining the parameters of what will and what will not amount to activities of a trade union, there are some activities that will not be protected if they are ‘wholly unreasonable, extraneous or malicious’ (Lyon v St James Press Ltd [1976] ICR 413). There it was held that the statutory protection given to trade union activities: “...must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally the right to take part in the affairs of the trade union must not be obstructed by too easily finding acts done for the purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate.”[25]The Respondent submits that the comments made to the Observer are disparaging of it and can be characterised as conduct which is wholly unreasonable thereby falling outside the scope of statutory protection. Comments that are critical of an employer will not necessarily cross the line into behaviour that is so unreasonable to fall outside the statutory protection. In Burgess v Bass Taverns [1995] IRLR 596 (CA), comments made by a shop steward at an induction course for new employees that were critical of the employer could amount to activities of a trade union notwithstanding the union member’s own admission that his comments may have ‘gone over the top’. In Mihaj v Sodexho Ltd [2014] UKEAT/0139/14, it was held that Burgess is authority for the proposition that: “the way in which trade union activities are carried out is immaterial to the decision as to whether they are in fact trade union activities unless the way in which they are carried out is such as to be dishonest, in bad faith, or carried out for some other organisation or cause so as to remove them from the scope of what can properly be called trade union activities”.[26]The way in which the alleged activities are carried out is therefore not irrelevant to the question of whether they fall within the definition of activities of a trade union.[27]Can it be said that the Claimant’s activities in this case are such that they clearly fall outside the scope of statutory protection? In British Airways Engine Overhaul Ltd v Francis [1981] ICR 278 the EAT concluded that the activities of a shop steward in complaining to the press about her own union amounted to union activities. The Respondent submitted that a distinction may be made in the present case as the Claimant was not a shop steward.[28]The Respondent submitted that the Claimant’s conduct is closer to the circumstances in Azam v Ofqual UKEAT/0407/14/JOJ. There, a trade union representative had disclosed information to her members in circumstances where the employer had given her information on the condition of strict confidentiality. She was found to have misled her branch executive committee by failing to make it clear that the information was confidential. It was held that she acted outside her remit and this was not the activity of a trade union.[29]In Luce v London Borough of Bexley [1990] IRLR 422, the EAT gave the following guidance in approaching the phrase ‘activities of an appropriate trade union of which the employee is a member’: “First, and most importantly, we are satisfied that the issue is ultimately one of degree and therefore one of fact. This must be left to the good sense and experience of the industrial tribunal which is entitled to look at all the circumstances. Secondly, although we do not consider that the phrase should be understood too restrictively, we are satisfied that it cannot have been the intention of Parliament to have included any activity of whatever nature. The whole context of the phrase is within the ambit of the employment relationship between that employee and that employer and that trade union.”[30]The Respondent submitted that there must be a nexus between the union, the employer, and the Claimant in respect of the activity. A personal gripe, such as it argues is contained in the Observer article, would not demonstrate the necessary tripartite nexus.[31]The Claimant submitted that section 146 TULRCA must be read so far as possible to comply with article 11 of the European Convention of Human Rights (Mercer v Alternative Future Group Ltd [2022] ICR 1034) and contended that it must similarly be read to comply with article 10 (Freedom of expression).
Conclusions
[32]The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances. It is draconian in nature. The test imposes a very high threshold: there must be no reasonable prospect of success. The Tribunal must consider whether on a careful consideration of all available material it can properly conclude that the claim has no reasonable prospect of success. If the central facts are in dispute, it would be exceptional to strike out a claim (Eszias v North Glamorgan NHS Trust [2007] ICR 1126, CA).[33]The test is not whether the Claimant’s claim is likely to fail or whether it is possible that the claim will fail. It is not a test which can be satisfied by considering what is put forward by the Respondent in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test (Balls v Downham Market High School and College [2011] IRLR 217, EAT).[34]Tribunals should be cautious in exercising the power to strike out, particularly in cases such as discrimination claims where there is a public interest in them being heard and because they are likely to be fact sensitive. The Claimant’s case should be taken at its highest unless conclusively disproved by (or totally and inexplicably inconsistent with) undisputed contemporaneous documents (Ahir v British Airways [2017] EWCA Civ 1392; Mechkarov v Citibank NA [2016] ICR 1121, EAT).[35]I reminded myself of the high threshold to be applied, the fact that the Claimant’s case must be taken at its highest, and that dismissal cases will require identification of the reasons for dismissal, which turns on direct evidence and the inferences that may be drawn from it (Kuzel v Roche Products Limited [2008] ICR 799, CA).[36]The Respondent asserts that the Claimant was not dismissed. It is not in dispute that the Claimant was sent a letter on 10 October 2022 headed ‘immediate termination of employment’. Whether that amounted to a dismissal is a matter on which a Tribunal will need to hear evidence and make findings of fact.[37]The Respondent asserts that the Claimant’s conduct is such that it obviously takes her beyond the protection of activities of a trade union. In sum, its case is that even if the Claimant were to have been dismissed (or subjected to a detriment), the claim must fail because those actions cannot be linked to activities of a trade union.[38]The parties agreed that the Claimant spoke to an Observer journalist. I have read the article, which the parties directed me to. It is not the purpose of this hearing to make any findings of fact on the matter. The article mentions the Claimant being a union member. Whether she spoke with the Observer in this capacity and whether this falls within the parameters of protected activities of a trade union appears to be dependent on context. Evidence will be required to determine the issue. Consideration will need to be given to matters such as the events that led to the Claimant being approached by the journalist, the capacity in which she was speaking, any involvement she had in the campaign for recognition, and whether the union was aware of and in agreement with her speaking to the press. These are matters on which findings of fact are needed.[39]The question of whether there was a dismissal or detriment and the reasons for any such treatment are also matters that are fact sensitive. The Claimant’s involvement with the union and campaign for recognition, the context in which she was speaking to the Observer, and what was in the mind of the decisionmaker who wrote to the Claimant on 10 October 2022 are all evidential matters from which inferences could permissibly be drawn.[40]In the circumstances, taking the Claimant’s case at its highest, I do not conclude that her claims of dismissal under section 152(1)(b) TULRCA and detriment under section 146(1)(b) TULRCA can be said to have no reasonable prospect of success.[41]I have also considered the Respondent’s application in the alternative that the Claimant be ordered to pay a deposit under rule 39. This is a less draconian alternative to strike out. It requires me to consider whether the case has little (rather than no) reasonable prospects of success. If I determine that is the case, I then have discretion to consider whether to make a deposit order having regard to the overriding objective to deal with cases fairly and justly.[42]I am not satisfied that this is a case in which it can reasonably be said that the Claimant has little reasonable prospects of success. Whether the Claimant’s actions amount to activities of a trade union or fall outside the parameters of the statutory protection depends on the context. These are matters about which evidence will need to be heard and findings of fact made. Moreover, the question of whether the Claimant was dismissed or subjected to a detriment is clearly one of fact and that can only be determined by hearing evidence.[43]The Respondent’s applications for strike out and deposit fail and are dismissed.
The law
[44]There is no debate as to the applicable provisions are S152(1)(b) TULRCA and there is consensus that I must determine whether the acts of the claimant are captured by that definition, of “activity” and does not extend beyond that, because the actions of the claimant are malicious, malign or extraneous. Whether the activity falls within the definition is a question of fact.[45]If I am not satisfied that the conduct falls in the definition of S152 TULRCA, then in essence the claim would fail and the dismissal will not be considered to be unfair, as a potentially fair reason of conduct under S98(4) ERA may apply. It will be necessary for me to evaluate what the reason for the dismissal was. The standard of proof to be applied is the balance of probabilities.[46]I have been referred to Article 10 of the ECHR – which is the right to freedom of expression. This is a qualified right. In the context of these proceedings, that is relevant in that no employer could restrain a freedom of expression, however, it does not prevent that expression being considered to be misconduct, if it fell outside of the S152 TULRCA protection of ‘union activity’[47]I have been referred to in excess of 10 different authorities by the parties, who have taken me through these in their submissions . I shall only refer to these as necessary. In so far as it assists my determination and analysis. However, the most relevant of those decisions which I consider must be central to my decision making is: Lyon V St James Press Ltd [1975] IRLR 215. Per Phillips J: The marks within which the decision must be made are clear: the special protection afforded by paragraph 6(4) to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate. We do not say that every such act is protected. For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair.[48]There is very little disagreement between the parties regarding the appropriate legal provisions and the fact that S152 does not offer a license for every action to be protected, and there are limitations. Equally the issue of whether the activity engaged in falls within the protection of S152 is ultimately a question of fact to be determined upon the evidence.
Evidence
[49]I have considered the various matters within the bundle and the additional authorities provided as well as detailed written submissions. I have heard evidence from the then Director of HR (Now CEO) Sacha Taylor and the claimant. Both witnesses provided thoughtful and credible accounts. Both were candid at points and both offered appropriate concessions, where it might not necessarily be supportive of their case. This was refreshing and symptomatic that both are consummate professionals, separated only by the ideology as to whether the claimant’s actions fell to be protected under s152 or not. I shall deal in more detail with specific elements of their evidence throughout my analysis. Findings and analysis. The status of the IWGB in the workforce.[50]It is worth noting at the outset that a number of the authorities that I have been referred to discuss the actions for time off for union activity or journalistic roles for unionised workforces. As such they are not on all fours with this case. The respondent in their submissions drew a distinction at paragraph 32 regarding the activities of the union and that the claimant was not a Shop Steward or officer of the union, and called into question whether the activities could be part of ‘union activities’ in those circumstances.[51]The workforce was attempting to unionise. The claimant was a union member. There is nothing that I have been shown in the legal authorities which prevents the claimant’s actions falling within the definition of ‘union activity’, on the basis of the fact that the workforce had yet to obtain the statutory status or voluntary recognition. It would be a perverse outcome under the statute if S152 TULRCA protection were excluded in the process of unionisation. The lack of formal roles within the workplace, is not in my view fatal to the claimants case, nor is it determinative. It is a question of fact as to what occurred.[52]I consider that Schedule 1A – S 161 (2) TULRCA also provides statutory protection for an union member engaged in the process of obtaining recognition, including a campaign of recognition, or to influence fellow employees offering support for recognition, and that the acts of the claimant should not be narrowly constructed, but adjudicated on their purpose and effect. Journalism as a protected activity.[53]The next question to be asked is whether the act of journalism is a protected activity. I have been referred to authorities relating to publications and editorial roles undertaken for a union. But there has been no authority presented which defines whether the claimant giving an interview in these terms amounts to a union activity.[54]In British Airways Engine Overhaul Ltd v Francis [1981] ICR 278 the individual gave a prepared statement to the press, and this was found to have attracted the protection of union activity. A prepared statement is different to an interview, where a soundbite may be selected by the journalist, and editorial control rests with those outside of the union.[55]However, the authorities are clear that the definition of activity should not be cast too narrowly, and I agree with that sentiment.[56]I have been referred to the ACAS Code of Practice on Time Off for Trade Union Duties and Activities 2010, for guidance on the actions which might come under the definitions of activity. This list is neither authoritative nor exhaustive, it unfortunately is silent upon the issue of journalism.[57]It seems to me as a question of interpretation, that in a modern society, it is routine that an individual may in the proper course of union activity give a press interview, either to a newspaper, television, or even via social media. I can easily understand why the ACAS guidance does not cover such issues as media, as once one starts to codify media relations in the context of “activity”, codification becomes fraught with endless complications, once modern forms of media are factored in.[58]However, we live in a modern world and it is in the DNA of unions to use all available voices to pressure and advocate for change on behalf of its membership. It seems to me that despite what may then become a lack of editorial control, the concept of a newspaper, television or media interview, could fall comfortably in the definition of union activity. Activities of the claimant[59]I have heard how the claimant was an employee representative and later on, one of a group who in effect spearheaded the unionisation. I have no doubt that she believed that that was appropriate for the workforce. The claimant was involved in numerous meetings and discussions with the IWGB union. Some of the sticking points to the creation of the bargaining unit, related to whether the claimant’s level of role should be included in that bargaining unit. Ultimately she told me that she withdrew from the bargaining unit, in order to speed the process through. I was left in no doubt that at all times the claimant has conducted herself with a view to facilitating union recognition.[60]I was also left in no doubt that her employment prospects and indeed the treatment by the other leadership team of the respondent, did not change as a result of her involvement. Although Ms Taylor was at times a little illusive, as to what was known within the business about the claimant’s union involvement, I am satisfied that there was sufficient evidence that the claimant was proposed to be involved in the bargaining unit. The respondent therefore knew full well, that the claimant was heavily involved in the unionisation campaign, and likely to be a member of the said union.[61]The claimant told me in her evidence that although the CAC process was ongoing, a decision was made to go public and attempt to use social media and or the press to attempt to influence the process of recognition. It was suggested to the claimant in evidence that this was in effect immaterial as the CAC was seized with the process and were holding a ballot. There was in effect nothing to be gained by the press involvement.[62]I accept the claimant’s evidence that the press campaign was an attempt by the IWGB Union to influence the respondent into submitting to the unionisation. In any dispute (as there then was) it is open to the parties to settle their differences, which would have resulted in recognition. Equally when a third party is involved to determine a dispute there is always a risk that the party may lose. There was also the secret ballot process, and the campaign may have also sought to influence undecided workers to vote in support of recognition.[63]I do not therefore see the argument that that this was somehow an illegitimate or malign campaign at this stage. Whilst the CAC process was ongoing, it had yet to be determined, and as I have observed, the DNA of a union is to advocate, pressure and represent. I can understand why those who were anxious about the potential outcome, attempted to use all resources at their disposal, to influence everyone involved in the process.[64]Whilst the claimant admitted that she lacked knowledge as to the physical workings of the CAC (as the IWGB were litigating this aspect), she was aware that there had been three rejected applications for recognition. It was not until the hearing on 10th of October 2022 (coincidently the date of the dismissal) that the CAC determined the need for a secret ballot. Given the hearing date there was perhaps a logic to the timing of the purported press campaign.[65]I accept that the claimant was an IWGB member. I accept her evidence that she had been involved in meetings with the IWGB including the meeting where it was decided to go public with a press campaign. I accept the claimants evidence that the IWGB then put out feelers to various journalists.[66]On the 3rd of October 2022, Tom Wall a journalist with the Observer Newspaper, contacted the claimant as he had been given her details by the IWGB. He proposed an article about the struggle to unionise the respondent. The claimant agreed to speak to him.[67]I accept Ms Fidepe’s argument, that the claimant on her evidence volunteered to speak to the journalists. However, the IWGB facilitated this, and this is an important distinction. The claimant volunteering does not sever the link to authorised union activity. The IWGB needed workers to speak to the press as part of the campaign and the claimant was one such individual nominated after she volunteered. S 161 of Schedule 1A of TULRCA provides protection for engaging in the process of recognition. Had they been recognised, I suspect the claimant would have been in a prominent union role such as a shop steward. The claimant is an eloquent and intelligent individual and I can well imagine why she was selected, to speak with the press.[68]When the claimant gave evidence about the article she confirmed that Tom Wall had given her an overview of the article, prior to her comments. Given that the article came about because the IWGB wanted it, there is no distinction here and it seems to me to sit squarely within union activity.[69]I find that the fact that the IWGB Union put the claimant forward to speak to the journalist, brings her within the category of an authorised union activity. It then follows that I must examine how the claimant conducted herself, to analyse whether her conduct was such that it took her outside of the protection afforded. To do so I will need to examine the nature of the article and the events that followed The Article[70]I have read in detail (numerous times) the article, which the claimant is quoted in. The phrase “not living our values” is a direct quote from the claimant and it appears in the headline. It goes on to accuse the respondent of hypocrisy over the request for union recognition and the way the IWGB have been treated.[71]In the sub heading of the article it also quotes the claimant’s words; “The body gave an award for unionising workers to the IWGB, which it now refuses to recognise.” It is suggested that I must consider the specific comments of the claimant carefully in isolation. However, I have had regard to the whole article, and I consider this essential as it paints the context, and is necessary for a proper evaluation and understanding, alongside an analysis of the specific words used by the claimant.[72]The article starts by setting out the refusals of the three voluntary recognition applications that were submitted to the respondent. This is factually accurate. At 214 of the bundle it references the “RSA’s industry wide support for trade unions”. At 215 of the bundle it quotes Andy Haldane (the respondent’s then CEO) as stating “the decline of trade unions has left workers less able to bargain for pay”. In short it set the scene for why the allegation of hypocrisy may have been levelled against the respondent. The quotes used have not been refuted.[73]It also confirms the IWGB Union as applying for statutory recognition, via the CAC. It provides quotes and references about the respondent’s stance on the IWGB Union, which are highly critical. I have been unable to clarify if this was the accepted position of the respondent, and where these quotes were taken from. Ms Taylor in her evidence assumed that these quotes had been taken from correspondence by the respondent with the IWGB or the CAC. I therefore find that the respondent does not dispute that they may have been accurately quoted as describing the IWGB Union as “not a fit and proper organisation for collective bargaining.” Nothing in the evidence I have seen, suggests that this position is in any way an inaccurate representation of the respondent’s position, and sits with the wider information I have been provided with, regarding the resistance of the respondent to consent to recognition.[74]The claimant is then named in the article as is her role as follows: “Ruth Hannan, the RSA’s outgoing head of policy and participation and IWGB member, said the RSA was being hypocritical. “The RSA has done a huge amount of work over the past few years on the future of work and what good work looks like – and we’ve given the IWGB an award,” she said. “But the RSA is telling the world one thing, and doing another….. Hannan, who is leaving after more than three years but remaining an RSA fellow, said many of the society’s illustrious former and current fellows would be shocked by its approach to union rights. “They joined the RSA because it is open, pioneering, enabling and optimistic. They would be disappointed to hear we’re not living our values – and that we’ve made life so hard for staff. We are letting down our very high historical reputation.” Dismissal Rationale[75]In evidence Ms Taylor highlighted that she felt the statements of Ms Hannan to have harmed the reputation of the respondent. She said that a collective management decision was taken to send a letter to the claimant to curtail her notice, acknowledging that I had already found a dismissal had taken place for the reasons stated above.[76]I struggled with this part of Ms Taylor’s evidence as to how the discussions took place. It is said that this was on a Sunday and that there were multiple phone calls between , herself Mr Haldane, Mr Mathers and Mr Richards. Many of which took place late in the evening.[77]I find that there must have been some anticipation of the article. Ms Taylor was not challenged about this, but a spokesman is quoted in the article. I find the respondent was on notice that it would appear, which is why it came to prominent attention of the executive team, on the Sunday. I would have been surprised had there not been some e-communication about this on a Sunday. A text message or an email trying to co-ordinate a catch up, or even a phone log. However, this does not appear in the disclosure before me. Which is perhaps surprising. I also struggle with who the decision maker was, given that Ms Taylor appeared to be operating a shuttle service between the various members of the senior management team. Ms Taylor’s evidence in this regard was somewhat confusing and hard to unpick, and at points opaque as to who decided the way forward. It is not clear what was taken into account, and what they decided between them as the reason for dismissal. It perhaps matters little who the ultimate decision maker was, but certainly Ms Taylor was heavily involved. It is apparent on the evidence that they felt the claimant’s continued presence would risk a further damage to the reputation, and she should go immediately.[78]From the emails that were passing back and forth on the 9th of October 2022 (at 220 of the bundle between Mr Richards and Ms Taylor), the original draft of the termination letter, and the letter of the 25th of October 2022 to the IWGB, I find that they all clearly link a potential breach of terms of her contract, and potential for gross misconduct, as a reason for the decision to end the claimant’s contract of employment early. In her evidence Ms Taylor was clear that she felt that the claimant had a responsibility to the respondent under the media policy and given her senior role and the language used, that this would damage the reputation of the respondent.[79]I am left in little doubt from the evidence I have heard and the written intentions of the respondent in its early drafts, that they believed that an act of gross misconduct had been committed. I find that this was the reason they acted.[80]The respondent was alive to the risk of a S152 TULRCA infringement. Mr Richards specifically referenced the risk on the 9th of October 2022, that the letter of dismissal could be seen as the claimant’s employment being terminated for union activity. The dismissal letter was toned down as a result.[81]Ms Taylor in her evidence drew a distinction as to whether it was a legitimate activity. She said the use of the phrase ‘we’ve’ and ‘naming the claimant’s role’ in the article were the central issues linked to reputational damage. Ms Taylor also said that the phrase in relation to ‘making life hard for workers’, was misleading. The implication being that it was implicit there were difficult working conditions at the respondent. She felt that this breached the media policy and fell outside reasonable conduct.[82]The claimant in her evidence expressed some regret for the fact that she had allowed her name to be used. Hindsight is a wonderful thing. She referred to the use of “we – or we’ve” as an affectionate term for the Respondent and one that she has struggled to stop using even having left the organisation. I have seen evidence of this in the claimant’s evidence. I can see that in the free flow she used this phrase as it was her common terminology, and perhaps that was ill judged, and naive. However, I did not get any sense from the claimant that she intended this to be misleading or malicious.[83]My assessment of the claimant’s evidence as a whole, is that she just wanted to highlight the hypocrisy she perceived, and bring pressure to bear on the situation. That in my finding, as I have said, is a legitimate activity.[84]I cannot see why, in any trade union dispute, that a senior or prominent worker cannot make a press statement, protected as a union activity. It is a legitimate activity for a union member to criticise an employer (in this case in relation to its treatment of the unionisation process), and it is a legitimate outcome for that criticism to cause reputational damage to the employer, if it is made in a public domain. Parliament clearly contemplated this, when it gave the protections afforded by S152 and S161 of Schedule 1A TULRCA, to ensure that undue influence was not brought to bear, by an employer. This is of course to be distinguished from the malign activity which has as its central purpose, to mislead or harm, without a legitimate objective.[85]Ms Taylor stated that as a member of the management team, the claimant should not have given the interview and accordingly this breached the media policy (without consent of the respondent), particularly given the claimants position. She argued it appeared as if the claimant was speaking for the respondent. The reliance on these two matters is in my view a flawed justification for the action undertaken.[86]The protections of S152 TULRCA do not discriminate between the level of worker, within any organisation. The only qualifying feature to be afforded protection is that the action must be legitimate union activity. The fact that a union statement may contravene a firms usual media policy, is the whole point of freedom to be unionised, and the point of the protection under S152 and S161 of Schedule 1A TULRCA. Union members should be free to be critical, in appropriate circumstances. To hold the claimant to a higher standard because of her position, would be a contravention of her article 10 rights, and effectively provide a discretionary opt out for employers, from the protections afforded by S152 TULRAC based on an employees management seniority. The TULRCA does not provide such a distinction. I find that the principle of the contravention of the media policy by the claimant, related to her position would not be a fair reason to dismiss the claimant and would in principle amount to a contravention of S152 TULRCA.[87]That said, I can see that an individual (such as the claimant) should choose their words carefully, to be captured by the protection. I have already found the use of the phrase ‘we’ve’ may have been ill judged. However, the article makes it clear that in her role the claimant is an IWGB member. I find that this reference is sufficient to interpret that the claimant was aligned and speaking for the union and not on behalf of the respondent. In relation to her accusation of hypocrisy “saying one thing and doing another,” I find is an entirely legitimate statement for a union representative to make. It is not offensive or malicious. It highlights a potential important issue from the perspective of the claimant and the union. This was in relation to the respondents praise and criticism of the IWGB, being in perceived conflict with each other.[88]I find the use of the phrase “not living our values” is a clear and legitimate criticism, highlighting the context above that the respondent has both promoted unionisation by others, but has resisted it internally. I note that in her evidence Ms Taylor repeatedly noted that ‘unionisation was not felt to be in the best interest of the charity as a medium sized charity’ and they had welfare structures in place for staff. The fact that staff may feel differently, is an entirely legitimate criticism to make in the context of union activity and recognition.[89]Ms Taylor asserted that the phrase “made life so hard for staff” is misleading, and thus falls outside the protection of union activity. When I asked about the interpretation of this, and how it could be read, either as ‘unionisation has been made hard’ or ‘working conditions have been made hard’, she felt it would be interpreted as the latter, and as a result was misleading. In summary her allegation was that this coupled with the claimant’s role, made it appear that the respondent acknowledge some form of wrongdoing and somehow legitimised the IWGB and claimant’s allegations. Ms Taylor said that the claimant was in effect a middle manager, however, the job title may be perceived as one of greater influence, and the public may not be able to distinguish this. Whilst the concerns highlighted are understandable, in my finding this insufficient justification for the actions of the respondent. A management role and union activism are not mutually exclusive and it would be inappropriate to apply such a fetter.[90]Contained within the article (at 218 of the bundle) there is a spokesperson quote. This is clearly a distinct voice from the claimant. It also says that until the CAC process is over, it would not be appropriate for comment. In my finding this is a further factor as to why the claimant can be seen as speaking distinctly on behalf of the IWGB members. In that regard she is entitled to accuse an employer of making either the registration, or the working conditions hard. It may be both. But neither takes it out of the sphere of union activity. However, my own interpretation on reading it was that it was the process of registration that was made hard. But I do not think it changes the outcome if it is the other context.[91]In my finding the risk of reputational damage was clearly a factor that motivated the claimant’s dismissal and that this was misplaced.[92]I find that on all of the information provided to me that the sole reason for the dismissal of the claimant was the article, and the perceived consequences for the respondent that this created.
Conclusions
[93]I Have made it clear above that the activities of the claimant being promoted by the IWGB fall within the definition of ‘authorised union activity’. I am not persuaded that they were so removed as to represent individual activities of a union member, and therefore the respondent has not discharged its burden in that regard.[94]I am satisfied that the conduct of the claimant was a union activity within the definition of S152 TULRCA. The comments were not malicious. There was nothing for the claimant to gain. Her desire was to pressurise the unionisation and that in my view makes it a legitimate aim.[95]The wording used could not be considered offensive, it is eloquent , and at times hard hitting, but it is comfortably within the sphere of legitimate criticism and the language appropriate to that. I do not consider the phraseology to be misleading, and there is balance in the article. The respondent has fallen well short of demonstrating that it falls into the malicious, wholly unreasonable category or the extraneous as described in Morris V Metrolink Ratp Dev Ltd [2018] EWCA Civ 1358.[96]The respondent perceived the claimant’s actions to be misconduct. They were alive to the S152 TULRCA risk in their correspondence. The sole reason for the dismissal was the article. I have found the article is legitimate union activity by the claimant. It follows therefore that I am bound to find that the claimant was dismissed for participating in union activity and therefore was unfairly dismissed for an automatically unfair reason under S152(1(b) TULRA.
Remedy
[97]The claimant in her schedule of loss indicated that she sought a modest amount, of £2569.50, by way of a basic award. She did not seek any compensatory award. I got the sense that the remedy the claimant sought was the principle, of the decision, as her losses in the circumstances were very modest.[98]In discussions with the parties I highlighted S156 TULRCA, which sets out a minimum basic award to be applied as a starting point in cases of dismissals pursuant to S152 TULRCA. Having discussed this with counsel, there was no opposition to the fact that I should apply S156 TULRCA and that in the first instance this would amount to a more significant basic award, namely £6,959 (for the relevant tax year). No party argued that because the claimant had overlooked S156 TULRCA, that it would be just and equitable to reduce that award, and I take the view as the statutory guidance intended a larger basic award, there was no reason in the first instance to depart from this, as starting point.[99]However, the respondent did argue that there ought to be a reduction for contributory conduct. The basis of this argument was that I had made the findings at paragraph 83 above that the claimants words were ill judged and naive. Ms Fidipe argued in those circumstances that the basic award should be reduced by half. This was opposed by the claimant who argued that the scope of the conduct fell within the remit of S152 TULRCA and was therefore protected, and did not amount to contributory fault.[100]As a matter of construction, it follows that if an individual is afforded protection under S152 TULRCA, their action is legitimate union activity. It would be a perverse finding that the conduct were then subject to a reduction for contributory conduct, and would erode the very protection that was intended.[101]It seems to me that (in relation solely to the basic award prescribed by S156 TULRCA), the issue of contributory conduct, must stand and fall as to whether the activity falls for protection S152 TULRCA. If the conduct were such that contributory fault should be applied, then it follows that the conduct would fall into the categories described in Morris V Metrolink and therefore be incapable of S152 TULRCA protection.[102]Even if I am wrong about that, I do not find that the claimants wording was such that it merited a reduction. I have noted that there was sufficient delineation in the article to identify that the claimant was speaking in support of the unionisation and not on behalf of the respondent. There was an eloquent logic to her argument, and her argument, was perfectly reasonable. The manner in which she used the phrase ‘we’ve’ was perhaps not the wisest, but it did not take the matter outside of the protection of S152 TULRCA, because of the claimant’s conduct. I therefore refuse the respondent’s argument that a reduction should be applied to the basic award.[103]In conclusion, I find that the claimant was unfairly dismissed pursuant to S152 TULRCA 1992, and I award the claimant a basic award only pursuant to S156 TULRCA 1992. The respondent must pay the claimant £6,959.[104]That is my Judgment.