Mr M Turner v Brighton and Hove City Council: 2309588/2024
EMPLOYMENT TRIBUNALS
Case No 2309588/2024
Between
Mr M TurnerClaimantBrighton and Hove City CouncilRespondent
Before
Employment Judge HeathMs I Omambala KC for claimantMr A Allen KC for respondentDate 17 January 2025
JUDGMENT
For reasons given orally at the hearing, the respondent’s application for costs under Rules 76(1)(a) and (c) and 76(2) Employment Tribunals Rules of Procedure 2013 is not granted.
REASONS
[1]I had before me an agreed bundle of 733 pages. I was provided with witness statements for the claimant, and for Respondent, Rachel Chasseaud, Deborah Austin, Melissa Francis and the dismissing officer, Steve Hook.[2]I also had the benefit of written and oral submissions from two of His Majesty’s counsel, Ms Omambala for the Claimant and Mr Allen for the Respondent.
The law
[3]I am considering the Claimant’s application for interim relief under section 163 Trade Union and Labour Relations (Consolidation) Act 1992, which states (inter alia): Case No: 2309588/2024 10.2 Judgment - rule 61 February 2018 163 Procedure on hearing of application and making of order. (1) If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply. 152 Dismissal of employee on grounds related to union membership or activities. (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— (a) was, or proposed to become, a member of an independent trade union,. . . (b) had taken part, or proposed to take part, in the activities of an independent trade unionat an appropriate time,. . .[4]There are further requirements under section 161 Trade Union and Labour Relations (Consolidation) Act 1992 but the Respondent accepts these have been complied with.[5]The word “likely” for the purposes of section 163 and its equivalents in the Employment Rights Act 1996 has been held to mean that the Claimant has “a pretty good chance of succeeding, not merely that he or she could possibly win.” (per Taplin v C Shippam Ltd [1978] ICR 1068 EAT). In Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, it was stated that 'likely' connotes 'a significantly higher degree of likelihood' than more likely than not meaning it is a significantly higher test than the balance of probabilities.[6]This is a high bar for Claimants to reach as recognised by the EAT in Dandpat v University of Bath UKEAT/0408/09: “20. We do in fact see good reasons of policy for setting the test comparatively high… in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not [a] consequence that should be imposed lightly.” Case No: 2309588/2024 10.2 Judgment - rule 61 February 2018[7]Under what is now Rule 94, a Tribunal will not normally hear oral evidence. In Dandpat it is recognised (at para 17) that an application for interim relief is necessarily summary in character and that a Tribunal will have to give only the essential gist of its reasoning. I am entitled to have regard to the draft witness statements notwithstanding I have not heard oral evidence.[8]In Lyon and anor v St James Press Ltd 1976 ICR 413, EAT, Mr Justice Phillips, then President of the EAT, said that ‘the special protection afforded by [what is now S.152(1)(b)]… 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’. Phillips P accepted that where ‘wholly unreasonable, extraneous or malicious’ acts are done in the course of trade union activity, they could be grounds for a dismissal that is not unfair.[9]The approach in Lyon was applied by the Court of Appeal in Bass Taverns Ltd v Burgess 1995 IRLR 596, CA. In the course of his judgment, Lord Justice Pill stated that ‘I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term “trade union activities” in [S.152 TULR(C)A]’.[10]In Mihaj v Sodexho Ltd 2014 ICR D25, EAT, Mrs Justice Slade stated that, if there is inconsistency between the approaches in Lyon and Burgess, the latter is to be followed. However, in Morris v Metrolink RATP Dev Ltd 2019 ICR 90, CA, Lord Justice Underhill stated that if this was intended to suggest that there was some difference between the approaches, he would respectfully disagree. In his view, Phillips P in Lyon was correct to state that certain things done or said by an employee in the course of trade union activities will fall outside S.152(1), and his reference to acts that are ‘wholly unreasonable, extraneous or malicious’ captured the flavour of the distinction. Underhill LJ endorsed the Case No: 2309588/2024 10.2 Judgment - rule 61 February 2018 essential point that, in such a case, it can fairly be said that it is not the trade union activities themselves that are the (principal) reason for the dismissal but some feature of them which is genuinely separable. That said, as Phillips P pointed out, this distinction should not be allowed to undermine the important protection that the statute is intended to confer — an employee should not lose protection simply because he or she does something ill-judged or unreasonable, and Burgess is a good illustration of this. Is it likely that the Claimant’s dismissal will be found to be solely or principally for being a member of a union or taking part in the activities of a union?[11]I think it is likely that a future tribunal will decide that this question will turn on what was operating in the mind of Mr Hook when he took the decision to dismiss. I have heard nothing to make me think that it is likely that the mental processes of any other individual will need to be assessed.[12]The Claimant in part seeks to persuade me that what was operating in Mr Hook’s mind was not the matters set out in the dismissal letter but rather dislike of the Claimant due to his being the personification of the GMB union in the Respondent’s eyes. I do not think this is likely. I have not been provided with any evidence to support a conclusion that that finding is likely. In particular, although there is WhatsApp evidence that might be said to support such an allegation in relation to others, this does not (as far as I can see) implicate Mr Hook. I do not consider that evidence of procedural failings in the investigations or suspensions help me to reach conclusions about the state of Mr Hook’s mind nor do I think it likely that those matters will lead a tribunal to make an inference about Mr Hook’s intentions. Equally, I am not persuaded that the Respondent’s apparent resistance to reengaging the Claimant regardless of the outcome of today’s hearing helps me at all with Mr Hook’s motivations. By contrast, it does seem relevant that the investigation report discloses a significant number of individuals advancing various allegations against the Claimant. Case No: 2309588/2024 10.2 Judgment - rule 61 February 2018[13]The Claimant also seeks to suggest that, even if the Respondent’s stated reason for dismissal is as alleged in the dismissal letter, this will nonetheless fall foul of section 152 as the actions of the Claimant (who was engaged full time as a GMB convenor) all amounted to activities of the GBM union. For today’s purposes this essentially turns on the question of whether it is likely that the actions of the Claimant apparently relied on to dismiss were not genuinely separable from the trade union activities themselves whether as a result of being wholly unreasonable, extraneous or malicious or otherwise. This is a difficult question for me to engage with today largely due to the number of allegations relied upon to dismiss the Claimant. It seems to me that there may be a spectrum of (mis)behaviours within the context of ostensibly performing Trade Union activities that may or may not justify separating that behaviour from the Trade Union activity for the purposes of section 152. Where there is one alleged act of misconduct that is easy enough to assess but it becomes harder the more allegations there are. Some of the allegations against the Claimant appear at first glance to be more serious and more easy to separate from union activities (those Mr Allen quoted in submissions such as the Claimant alleging he would “break” staff members, threatening staff members’ jobs or shouting at counsellors) whilst other matters (saying someone was “wriggling like a worm” or “MT targeting Ian F a bit”, or “sometimes upping the anti and it getting a bit much” even copying in senior members of staff to emails that are critical of other staff) that appear less obviously separable from Trade Union activities. Overall, because of the presence of quite a number of those more potentially separable looking allegations and mindful of the high test in the word likely and the high causative test due to the requirement for the union activity to be the sole or principal reason for the dismissal, I do not consider it likely that a tribunal will find that the sole or principal reason was trade union membership or activities.[14]It follows that the Claimant’s application for interim relief fails is rejected. Case No: 2309588/2024 10.2 Judgment - rule 61 February 2018