Mr S Mighall v Cammell Laird Shiprepairers and Shipbuilders Ltd: 2411552/2018
JUDGMENT
[1]The claimant was fairly dismissed by the respondent, for a reason related to his conduct, on 14 March 2018. The claimant’s claim that he was unfairly dismissed is not well-founded, fails and is dismissed.[2]The claimant's claim that he was dismissed on grounds related to union membership or activities is not well-founded, fails and is dismissed.[3]The claimant's claim that he was subjected to detriment on grounds related to union membership or activities when his appeal was rejected, is not well-founded, fails and is dismissed.REASONS
[1]The Issues The respondent put forward a written proposed List of Issues which was accepted by the claimant as follows:[2]The Facts2.1 The respondent is a large employer with 765 employees. It has a professional HR Department. It operates several written policies and procedures and it has a handbook available to all employees (page 37 of the trial bundle, to which all other page references relate unless otherwise specified). The respondent has recognition agreements with GMB and Unite trade unions, with each of the trade unions having three Shop Stewards at the material time.2.2 The claimant was employed by the respondent from 9 April 2010 until his dismissal for gross misconduct on 14 March 2018. The claimant was employed as a Boilermaker Plater in the production and repair of ships. All material times the claimant was a local shop steward for the GMB union.2.3 In late 2017/early 2018 there was an industrial dispute regarding the duration of a pay deal, which led to a ballot for industrial action. This in turn led to two days of strike action on 26 and 29 January 2018. This strike was supported by both recognised trade unions. The industrial dispute was resolved by management and area officials (not local shop stewards) of both unions via the good officers of ACAS. Subsequently and until the matters giving rise to these proceedings the claimant was not complained about by the respondent and he made no complaint about the situation at work; no action was taken either with regard to formal disciplinary proceedings or informally by way of performance management, counselling or otherwise by the respondent in respect of the other five shop stewards at any time to date. Shortly after resolution of the industrial dispute both the respondent and trade unions issued a statement urging everyone to “move on” as there had been bad feeling generally and some adverse comments between colleagues both in the workplace and on social media. Towards the end of February 2018 the respondent, independently of the trade unions, commenced a poster campaign against bullying, prejudice, racism, harassment, blackmail, discrimination, sexism and intimidation using a lifebelt logo, a copy of which appears at page 117. The Chief Executive Officer was quoted as saying that the respondent is an equal opportunity employer; it was said that there is no place within the respondent company for behaviour such as that described in the campaign, which would not be tolerated in any form. The Tribunal was not entirely satisfied that these posters had[3]The Law3.1 Section 152 TULRCA provides that a dismissal shall be regarded as unfair if the reason for it (or if more than one the principal reason) was that the employee was or proposed to become a member of an independent trade union or had taken part or proposed to take part in the activities of an independent trade union at an appropriate time (amongst other things).3.2 Section 146 TULRCA gives a worker the right not to be subjected to any detriment by his or her employer related to union membership or activities, except where the worker is an employee and the detriment in question amounts to dismissal.3.3 Section 94 Employment Rights Act 1996 (ERA) states that an employee has the right not to be unfairly dismissed, while s.98 ERA sets out what is meant by fairness in this context in general. Section 98(2) ERA lists the potentially fair reasons for an employee’s dismissal, and these reasons include reasons related to the conduct of the employee (s.98(2)(b) ERA). Section 98(4) provides that once an employer has fulfilled the requirement to show that the dismissal was for a potentially fair reason the Tribunal must determine whether in all the circumstances the employer acted reasonably in treating that reason as sufficient reason for dismissal (determined in accordance with equity and the substantial merits of the case).3.4 Case law has provided guidance but is not a substitute for the statutory provisions which are to be applied. Case law provides that the essential terms of enquiry for the Employment Tribunal are whether, in all the circumstances, the employer carried out a reasonable investigation and,[4]Application of Law to Facts4.1 It was clear from the evidence of both the dismissing and appeals officers that they took a conscientious and diligent approach to their consideration of the facts before them, including the nature of the repeated graffiti and the circumstances of the claimant writing it, the immediate effect that this had upon RL, the seriousness with which it was treated by RL, SJ and DB and what appeared to be PW’s concern at the withdrawal of the allegation somewhat belatedly. In all the circumstances both the disciplinary and appeals officers were convincing in their evidence when they said that they felt these examples went beyond what the claimant considered was merely banter and that he had in fact overstepped the line repeatedly.4.2 The Tribunal was also struck by the frank acceptance by both the disciplining and appeals officers of the industrial environment in which it was accepted that the standards of discourse and display of pictures could in some circumstances have led the employees to believe that the standards were relaxed. They clearly took this into account.4.3 Albeit there was an apparent relaxed attitude regarding the display of some calendars and an employee noticeboard, nevertheless the