Mr B J Foulger v Middlesbrough Council: 2501757/2024
EMPLOYMENT TRIBUNALS
Case No 2501757/2024
Between
Mr B J FoulgerClaimantMiddlesbrough CouncilRespondent
Before
Employment Judge SweeneyDate 21 April 2025
JUDGMENT
[1]Upon hearing the application for interim relief under section 161 Trade Union & Labour Relations (Consolidation) Act 1992 (‘TULRCA’), it appears to the Tribunal that it is likely that it will find that, by virtue of section 152 of that Act, the Claimant has been unfairly dismissed.[2]The Respondent having stated that it is unwilling to reinstate or reengage the Claimant in accordance with section 163(2)(b) TULRCA the Tribunal makes an order for the continuation of the Claimant’s contract of employment meaning that the Claimant’s contract of employment continues in force for the purposes in section 164(1) TULRCA from: - the date of its termination (22 July 2024) until - the determination of or the settlement of the complaint of unfair dismissal (‘the Relevant Date’).[3]In respect of each normal pay period, or part of any normal pay period, falling between 22 July 2024 and the Relevant Date, The Respondent is ordered to pay to the Claimant: Case number: 2501757/2024 £3,185 gross per month with the continued deduction of £1,500 a month AVC pension contribution, resulting in monthly net pay of £1,480.[4]The above payment shall be made: 4.1. in the case of payment for any period falling wholly or after the making of this order, on the normal pay day for that period. 4.2. in the case of a payment for the period from 22 July 2024 to 19 August 2024, by no later than 30 September 2024. JUDGMENT having been given on 19 August 2024 and written reasons for the Judgment having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided.
REASONS
[1]By a Claim Form presented on 29 July 2024, the Claimant brought a claim of automatically unfair dismissal arising out of the summary termination of his employment on 22 July 2024. He claims, among other things, that his dismissal was automatically unfair within the meaning of section 152(1)(b) Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’).[2]The reason is referred to as an ‘inadmissible reason’. In his Claim Form the Claimant made an application for interim relief under section 161 TULRCA, which is the application I have had to decide.[3]On 02 August 2024, the Tribunal sent to the parties a Notice of Hearing to take place on 19 August 2024. The parties were directed that, if they intend to rely on any documents at the hearing they must send copies to each other not later than 3 working days prior to the hearing.[4]On 16 August 2024, the Respondent lodged with the Tribunal a number of documents consisting of a supplementary bundle of documents and statements from Erik Scollay of the Respondent and a draft statement from the Claimant. The documents contained an ET3 with grounds of resistance and written representations on behalf of the Respondent opposing the application for interim relief. The Claimant had earlier lodged a bundle of documents and a facilities agreement. There was no dispute as to whether the application was properly made. The issue to be determined[5]The issue, taken from section 163 TULRCA can be described thus: ‘does it appear to me that it is likely that at the Final Hearing the tribunal will find that, by virtue of section 152 the reason or principal reason for the Claimant’s dismissal was that he had taken part in the activities of an independent trade union at an appropriate time’? Relevant legal principles[6]Section 152(1) TULRCA provides: “For the purpose of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee – … (b) had taken part … in the activities of an independent trade union at an appropriate time.”[7]Section 163(1) provides: “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 provisions apply.” The provision then sets out the available relief.[9]A reason for dismissal ‘is the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee’: Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA. In a more recent analysis in Croydon Health Services NHS Trust v Beatt [2017] ICR 1240, CA, Underhill LJ said that the ‘reason’ for dismissal connotes the factor or factors operating on the mind of the decision maker which causes them to take the decision. It is a case of considering the decision-maker’s motivation.[10]There are a number of legal authorities on the approach to taken on an interim relief application (whether under section 163 TULRCA or ‘section 129 ERA 1996). 1.1. Taplin v Shippam [1978] IRLR 450; 1.2. Ministry of Justice v Sarfraz [2011] IRLR 562; 1.3. London City Airport v Chacko [2013] IRLR 610 1.4. Hancock v Ter-Berg & anor [2020] IRLR 97;[11]It is clear from the authorities that applications for interim relief are to be considered on a summary basis. A tribunal must do the best it can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The Tribunal must carry out an assessment of whether the claimant is ‘likely’ to succeed in his complaint, bearing in mind that the evidence on both sides is as yet untested (see in particular, London City Airport v Chacko [2013] IRLR 610).[12]When considering whether a claimant is ‘likely’ to succeed, it is not a case of asking whether he has a more than 50% chance of success. In Taplin v C Shippam Ltd, the EAT (Slynn J) stated that the tribunal must ask itself whether the claimant has shown that he has a ‘pretty good’ chance of succeeding at the final hearing (see paras 22-23): “it is wrong to assess the degree of proof which has to be established in terms of a percentage as we have been invited to do”.[13]This approach was endorsed in Ministry of Justice v Sarfraz where the EAT (Underhill J) as he then was) said in paragraph 16: “In this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood. Slynn J understandably declined to express that higher degree in percentage terms, since numbers can convey a spurious impression of precision in what is inevitably an exercise depending on the tribunal’s impression.”[14]A claimant applying for interim relief must satisfy the Tribunal that it is likely (in the sense described above) that he will be able to satisfy each of the elements of his complaint, and not just the reason for dismissal: see Hancock v Ter-Berg [2020] IRLR 97, para 42).[15]If the fact that an employee had taken part in trade union activities was merely a subsidiary reason to the principal reason for dismissal, then the employee's claim under section 152 will fail. Relevant context: undisputed facts and the documents/statements that will be adduced at a final hearing[16]I have used the initials of names in these reasons as they were used in the hearing before me. The initials are known to and well understood to the parties.[17]There are some undisputed facts. The Claimant commenced his employment with the Respondent on 30 June 2004. He was summarily dismissed on 22 July 2024 by a director of the Respondent, Erik Scollay, Director of Adult Social Care and Health Integration. At the time of his dismissal he had over 20 years’ continuous employment and was employed by the Respondent as a Senior Transport Officer. He was an active lay representative for the GMB union, having been the union convenor for approximately 15 years. A facility time agreement was in place between the Respondent and the union.[18]The Claimant contends that the principal reason for dismissal was his union activities on 26 February 2024. Those activities consisted of: 18.1. calling SA and discussing with her matters concerning SH and the review discussed with CH on 06 February 2024 18.2. sending the joint letter on pages 60-61.[19]In its Grounds of Resistance (‘GOR’) served on 16 August 2024, the Respondent contends that Mr Scollay dismissed the Claimant for his conduct, pleading in the alternative that it was for some other substantial reason following a complete breakdown in the Respondent’s trust and confidence in the Claimant.[20]On 06 February 2024, the Claimant met with the Respondent’s interim Chief Executive, Clive Heaphy (‘CH’). The Claimant was at that meeting in his capacity as a trade union representative. Also at the meeting was Paul Thompson (‘PT’), a Unison union representative and, ‘SH’ an employee and member of Unison’. It is common ground that, at the meeting, SH raised an allegation of race discrimination as well as other things (paragraph 9 of the GOR).[21]CH subsequently emailed a number of people, including the Claimant on 21 February 2024 by way of follow up to that meeting. The subject of the email was ‘confidential issue’ and it was given high importance. The email was at pages 58-59 of the bundle prepared for the Interim Relief application. CH proposed three actions, which he set out in the email. Where he referred to ‘the aggrieved party’, this was a reference to SH. At point number 3 of his emails, CH said he was “working with HR colleagues, in particular Saadia Azam (‘SA’) to raise awareness of issues related not just to race but all of the other protected characteristics.”[22]On 26 February 2024, the Claimant emailed CH, attaching a letter on behalf of the GMB, Unite and Unison concerning potential equal pay claims or a mass grievance [pages 60- 61]. Shortly after that, on the same day, the Claimant had a telephone conversation with SA. He called SA, who is an inclusion and diversity officer in HR. During this conversation, he discussed the circumstances of the allegation made by SH at the meeting of 06 February. SA reported the conversation to her manager, Kerry Rowe. The following day, 27 February 2024, the Claimant was suspended.[23]Sam Gilmore, the Respondent’s Head of Economic Growth, was appointed as investigating officer. He was to investigate the conversation between the Claimant and SA on 26 February 2024. The allegation was phrased as follows: “ … that Brian Foulger shared personal and highly confidential information from a meeting and email from the Chief Executive with another member of staff, including whistleblowing and grievance details and allegations against another member of staff.”[24]I was shown a copy of Sam Gilmore’s investigation report dated 01 May 2024 [pages 137 to 144 of the Respondent’s Supplementary Bundle. In paragraph 9 Mr Gilmore found that: “The conversation between the Claimant and SA included discussions around(i) the service review to which SH was subject;(ii) the complaint involving an accusation of misleading the Corporate / Independent Transformation Board(s);(iii) claims of racial discrimination; and(iv) that details of correspondence with the Chief Executive and Unions was disclosed. This is not disputed by either SA or Brian Foulger.”[25]Mr Gilmore recorded what the Claimant considered the purpose of the conversation (paragraph 13 and 15) and the impression SA had of the Claimant ‘itching to tell’ someone about the matters and that he wanted to talk to someone, ‘citing that relationships had broken down with him and the council’s human resources’ (paragraph 14). In paragraph 23, Mr Gilmore concluded that privileged and confidential information was disclosed during the discussion by the Claimant to SA. He finished by saying: “Brian may have believed that this was a legitimate conversation with SA believing that she was privy to the case, involved characters and information. This belief may arise from the misinterpretation of CH’s email. However, it is not reasonable to infer this meaning from the text of that email.”[26]Of the four options apparently available to Mr Gilmore, he recommended the matter proceed to a formal disciplinary hearing.[27]In a letter dated 09 July 2024, the Claimant was informed that he was to attend a disciplinary hearing on 22 July 2024 regarding the allegation: “that you have shared personal and highly confidential information from a meeting and emai from the Chief Executive with another member of staff, including whistleblowing and grievance details and allegations against another member of staff.”[28]Towards the end of the disciplinary hearing notes is a reference to Mr Scollay, who chaired the disciplinary hearing, concluding that the Claimant’s actions in discussing private and confidential matters with SA amounted to a breach of GDPR and amounted to gross misconduct [page 125]. He confirmed the decision in writing on 29 July 2024 [pages 128 – 129]. In that letter, Mr Scollay says: “… it is clear to me, despite understanding CH’s direction and the sensitivity of the case that you initiated a conversation regarding information that you knew to be privileged and confidential and during which the identity of the subjects were either revealed by you or inferred by SA from what you were saying…” “Further … you did not stop the conversation when the subject’s identity became apparent, as you should have done …. In obvious contravention of CH’s email of 21.02.24 and in contravention of the principles of GDPR and the Council’s own information and GDPR policies … you did not have consent from SH to discuss her details with Human Resources. …” “I have seen no evidence of your suggestion that this disciplinary process is in some way motivated in response to your historical activities as a union representative.”[29]Mr Scollay said in his letter that, having taken the Claimant’s explanation and any mitigating circumstances into account, he concluded that his conduct constituted gross misconduct and justified dismissal. There is no reference to considering any lesser sanction. Nor is there any reference in the concluding notes of the disciplinary hearing to consideration of any lesser sanction. It simply says: “Erik came to a decision that this issue is about gross misconduct and will terminate employment with immediate effect” [page 125].[30]Mr Scollay produced a statement of the evidence he proposes to give at the final hearing of the Claimant’s claim for unfair dismissal. Although there is no reference to lesser sanctions in the notes produced or in the letter of dismissal, in paragraph 13 of his statement, it apears that Mr Scollay will say that he ‘considered the possible sanctions with particular focus on the distinction between misconduct that may lead to a final written warning and gross misconduct that would lead to dismissal’.[31]He will also give evidence as to the reason for dismissal. He sets out the beliefs that resulted in the Claimant’s dismissal in paragraph 17 of his statement as follows: “… I believed that the Claimant had discussed information of a confidential and sensitive nature to SA which included discussion about:a. The service review to which SH was subject;b. The complaint involving an accusation of misleading the Corporate / Independent Transformation Board(s);c. Claims of racial discrimination by SH; andd. Details of correspondence between Chief Executive and Unions. This conversation was not part of the process that CH had determined should be followed in his email of 21st February 2024 … at that time a formal grievance had not been received from SH and SH was not a member of the union the Claimant represented.”[32]Finally, in paragraphs 20 and 21, Mr Scollay will say that he believed that the Claimant appreciated the sensitivity of the information being discussed, that he was aware of the confidential nature of the meetings with the Chief Executive and was aware of the actions proposed by CH. He felt that this was in contravention of CH’s email and that the Claimant’s conduct fundamentally breached his employment contract and as such immediate dismissal was the appropriate sanction. Discussion and conclusion[33]I was told that by Mr Van Zyl that there will be a dispute as to whether the activities referred to in paragraph 18.1 above amount to trade union activities (i.e. the act of discussing and the content of the discussion with SA). As for paragraph 18.2, there is no dispute as to whether the Claimant was engaged in union activities when sending the letter at page 60- 61. However, the Respondent will contend that this had absolutely nothing to do with the Claimant’s dismissal.[34]At the Final Hearing, it will be for the Claimant to establish that:a. He was taking part in trade union activitiesb. They activities of independent unionc. They were carried out at an appropriate time[35]Mr Van Zyl confirmed that it is accepted that the union is an independent trade union and that, if the activities of the Claimant in calling and discussing matters with SA are found to be trade union activities that they were done at an appropriate time. Therefore, the only controversial issue in this respect will be whether, in discussing the matters referred to in paragraph 31 a to d above, the Claimant was taking part in trade union activities. If he was, the next controversial and disputed issue will be whether the reason or principal reason for his dismissal was that he had taken part in those activities. I recognise that it is also part of the Claimant’s case that the trade union activities consisted not only of the discussion with SA but also the fact that he sent the letter of 26 February 2024 [pages 60-61]. It is accepted that, in sending that letter, he was taking part in trade union activities. The controversial or disputed issue in that respect was whether it had anything to do with the Claimant’s dismissal.[36]The Claimant was employed by the Respondent for more than two years. Unlike a person with less than two years’ continuous employment, he does not have to prove that the reason or principal dismissal was for the inadmissible reason. He will have to raise some evidential basis for asserting that his dismissal was for the inadmissible reason. Aside from this, it will be for the Respondent to establish the reason or principal for dismissal in the normal way in any unfair dismissal case and that it was a potentially fair reason.[37]It is absolutely clear to me that the Claimant will be able to raise an evidential basis for asserting that his dismissal was for an inadmissible reason in light of: 37.1. The context of the discussion with SA – namely, that it arose out of a meeting the Claimant and another trade union representative and SH had with the Chief Executive. 37.2. The reference to SA in CH’s email as being a person in particular with whom CH was working on matters of race discrimination. 37.3. The timing of the Claimant’s suspension and subsequent dismissal. 37.4. The fact that the purported reason for dismissal focuses on the fact of and the content of discussions with SA and the confidential nature of the subject matter. 37.5. The severity of the sanction imposed.[38]It will be for the Respondent to show what the reason for dismissal is and that it was a potentially fair reason. It will be for the Claimant, however, to establish he had taken part in trade union activities [section 152(1)(b)] The other constituent elements of section 152(1)(b) are not in dispute. The first disputed issue at final hearing: whether the Clamant was taking part in trade union activities?[39]Applying the legal principles set out above, I asked myself the question: is there a pretty good chance that the Claimant will show that he was taking part in trade union activities when:(a) He sent the letter at page 60-61? And(b) he discussed with SA the matters raised at the meeting with CH on 06 February 2024? (i.e. the matters in paragraph 31a-d above)[40]The answer to (a) is ‘yes’. Indeed, it is accepted and there is no dispute about that.[41]What then about (b)? In my broad assessment and judgement, the same answer applies to (b). There is a pretty good chance that the Claimant will show he was taking part in trade union activities on 26 February 2024 in discussing the matters for which he was dismissed with SA. My reasoning is as follows: 41.1. The Claimant was calling about a specific matter that had been raised jointly by all three trade union representatives. 41.2. The person he called (SA) was the EDI officer of the council and a member of HR. She had been expressly mentioned by CH in his email to the Claimant. 41.3. The fact that SH was a member of a different union is likely to be insufficient to take any discussion regarding her circumstances outside the scope of the Claimant’s trade union activities. The Claimant had attended a meeting with her and other trade union reps in a joint capacity – whether or not there were also other ramifications for GMB members. I do not accept the very absolutist position adopted by Mr Van Zyl – that because SH was in a different union it follows that the Claimant cannot be said to have been taking part in the activities of an independent trade union when discussing her case - is likely to succeed at the final hearing. 41.4. Mr Van Zyl’s submission that the Claimant called the EDI officer simply to engage in idle chit chat and gossip does not appear to be a conclusion expressed by Mr Scollay. It is not clear to me from where this submission derives (possibly from the reference by SA having the ‘impression’ that the Claimant was ‘itching’ to tell her things). Insofar as Mr Scollay is concerned however, he appeared to be in agreement with the investigator, Mr Gilmore, who expressed the following conclusion in paragraph 24 of his report: “Brian may have believed that this was a legitimate conversation with SA believing that she was privy to the case, involved characters and information. This belief may arise from the misinterpretation of CH’s email. However, it is not reasonable to infer this meaning from the text of that email.” 41.5. His primary point there appears to be that the Claimant’s belief that his discussion was a legitimate union activity was unreasonable.It appears that Mr Gilmore’s conclusion was quite simply that the Claimant had divulged privileged and confidential information including names. Neither he nor Mr Scollay expresses any conclusion that the Claimant was simply engaging in idle chit chat. At its highest in terms of how matters were expressed by Mr Gilmore (and adopted by Mr Scollay) it was on the basis that the Claimant’s view as to the legitimacy of his conversation with SA was unreasonable. 41.6. I consider it very unlikely that a tribunal will arrive at a conclusion that this was an exercise in idle chit chat or gossip. There is no suggestion that during what was apparently a lengthy telephone call, SA told the Claimant that he should stop talking or that he should not be calling her to discuss such things or that what he was saying was in any way inappropriate. I have had regard to what the Respondent will say regarding SA’s ‘impression’. Even if the tribunal were to conclude that SA had the impression that the Claimant had been ‘itching’ to tell her about the matters under discussion and even if he told her that relations between the employer and unions were not good and even if he divulged matters that were confidential, this is unlikely to lead to a conclusion that the Claimant called SA for non-trade union activity reasons or to engage in idle chit chat. 41.7. One of the issues taken by the Respondent is that the Claimant referred to individuals (in particular, SH) by name in breach of confidence. It is, nevertheless, pretty likely that by referring to the individuals directly by name (if indeed he did, and for these purposes I assume so but I repeat I make no findings of fact on that) that a tribunal will conclude that he was doing so as a trade union representative and in the course of and for the purposes of trade union activities. A tribunal is likely to accept that trade union representatives and HR officers have private conversations on a daily basis, in which confidential and private information is discussed. Common language often deployed by trade union representatives in relation to such discussion is that they are ‘off the record’. That is the evidence that the Claimant will give at the final hearing (paragraph 21 of his draft statement). Such conversations invariably take place outside more formalised processes or settings. Therefore, even if what the Claimant did was not within the process set out by the council’s chief executive following the meeting of 06 February 2024, how, I asked myself, does that lead to a conclusion that his action falls outside the scope of trade union activities? It is not for an employer to dictate what are appropriate activities of a trade union. I struggled to understand the Respondent’s argument on this point. Therefore, I asked – assuming that it was not within the process that the Chief Executive had in mind or mapped out - what was it about a trade union representative having a private conversation with an HR officer (one who had a remit for equality and diversity) that brings it outside the scope of trade union activities? Mr Van Zyl said that by stepping outside the process this ‘exposed’ the whistleblower – that is SH. However, he was unable to say in any convincing way what it exposed her to, especially when there appears to be no evidence that SH was or would have been unhappy with the Claimant speaking to SA (indeed, it can be seen from the bundle, that evidence will be adduced to the contrary). Further, there was no suggestion of any risk that what the Claimant spoke to SA about in confidence would be spread inappropriately by her to others. There was indeed no suggestion that this was anything other than a private conversation between the Claimant (a trade union representative) and SA (an EDI officer). 41.8. Further, I do not accept that a tribunal is likely to agree with the point made by Mr Van Zyll in para 36-37 of his written submissions. In Bass Taverns Ltd v Burgess [1995] IRLR 596, the Court of Appeal held that an employee who was dismissed for being critical of his employer during an induction day, telling new recruits that it was the union, not the company, that would effectively pursue health and safety issues, was dismissed for trade union activities. The employee's admission that he had gone "over the top" in that case was not to be treated as an admission that he was acting outside his remit as a trade union representative. However, the court was keen to emphasise that not all activities taking place under the auspices of a union, "however malicious, untruthful or irrelevant", would fall within the definition of "trade union activities". In the other case referred to (Mihaj v Sodexho Ltd UKEAT/0139/14/LA) the EAT (Slade J) stated, in paragraph 20 the issue for the judge on an interim relief application is whether a tribunal at a full liability hearing was likely to find that the claimant was dismissed for carrying out trade union activities. In so considering this: ‘the way in which those activities was carried out was not relevant unless it was such as described by Bass (or Lyon v St James Press) that the employee was acting in bad faith, dishonestly or for some extraneous cause or in any other way such as to take those actions outside the proper scope of trade union activities’. 41.9. It is a question of fact for the final tribunal to decide whether these were trade union activities – the assessment is not whether Mr Scollay reasonably believed them to be trade union activities. I consider it very unlikely that a tribunal will conclude that the Claimant was acting dishonestly, or in bad faith or that he was calling SA for some other cause (such as ‘idle chit chat’ – the only one suggested) such as to take his activities out of the scope of trade union activities. I do not consider there to be anything in the material I have seen or in the arguments that I have heard to suggest that a tribunal is likely to find a distinction between the doing of the trade union activities and any properly separable or severable ‘conduct’ of the Claimant in the course of carrying out his activities. The second disputed issue at final hearing: whether the Clamant was dismissed for taking part in trade union activities?[42]We are not concerned here with ‘reasonableness’, only the reason. However, reasonableness of process and outcome may have an indirect bearing in that such things may throw light on the reason but essentially it is about identifying the ‘reason’.[43]The Claimant has raised enough to put the tribunal on inquiry as to the reason for dismissal being an inadmissible one: 43.1. The nature, purpose and content of the discussion with SA. 43.2. The timing of the conversation with SA and of the letter at page 60-61 and his suspension, 43.3. The conclusions in the report by Mr Gilmore that it was the content of what he discussed with SA that should form the basis of disciplinary action, 43.4. The dismissing officer relied principally on the fact that the Claimant had revealed names, apparently in breach of GDPR and the principal or key component of that was the breach of confidentiality relating to SH, without inquiring as to whether SH consented. 43.5. No one has been able to articulate what principles of GDPR were breached other than in broad terms that personal data (names) were mentioned. 43.6. There is no reference in the dismissal letter to consideration of alternative sanctions; the Claimant had been employed for 20 years and the severity of the sanction has some bearing on the relevance of the decision such that it is likely to throw some light on the ‘reason’.[44]As he will have done enough to put the Tribunal on inquiry, it will be for the Respondent to show the reason or principal reason for dismissal and that it was a potentially fair reason. This is not a case where there is any suggestion that the Claimant had lied to SA about anything that he said. He was telling her about the events discussed at the meeting with the Chief executive, a meeting he attended in his capacity as a trade union representative. Consideration of 152 TULRCA requires an inquiry by the final tribunal into what facts or beliefs caused the decision-maker (in this case, Mr Scollay) to decide to dismiss. Mr Scollay will say that he dismissed the Claimant because he had discussed confidential matters with SA – and not because of the letter at pages 60-61. He will say that he believed that in so discussing matters with SA (i.e. in doing what a tribunal is pretty likely to conclude was the taking part in trade union activities), the Claimant had breached confidentiality and acted outside a process determined by the interim chief executive. Even if that is right, there is a pretty good chance (even ignoring the letter at page 60-61) that a tribunal will conclude that the things for which he dismissed were nevertheless things which the Claimant was doing in the course of and for the purposes of trade union activities, as opposed to engaging in idle chit chat - or in bad faith, or dishonestly (which has not been alleged) – even if in the course of doing so, he mentioned names or stepped outside what CH had envisaged to be a process for managing what they had discussed. Therefore, it is pretty likely (in the sense understood by the authorities) that the Tribunal will conclude the Claimant was dismissed for taking part in trade union activities and therefore automatically dismissed.[45]I also accepted Mr Sharples’ submission that the severity of the sanction in this case – instant dismissal of a long-serving employee and trade union official in circumstances where he had an off the record conversation with an HR officer even if names were mentioned – is likely to appear to a tribunal to be so severe as to shed light on the true reason for dismissal.[46]Therefore, as there is a pretty good chance that the Tribunal will conclude that the principal reason for dismissing the Claimant was that he had taken part in the activities of an independent trade union, the application for interim relief succeeds.[47]At the end of the hearing, I was told that the Respondent was unwilling to reinstate or reengage the Claimant in accordance with section 163(2)(b) TULRCA. Therefore, I made an order for the continuation of the Claimant’s contract of employment meaning that the Claimant’s contract of employment continues in force for the purposes in section 164(1) TULRCA on the terms set out in my order.[1]By a claim presented on 29 July 2024, the claimant made a number of complaints all of which were subsequently withdrawn, save for his complaints of unfair dismissal.[2]The issues for the Tribunal to determine were identified as follows: 10.5 Reserved judgment with reasons – rule 61 1 March 2017 2.1. Did the claimant on 26 February 2024 take part in the activities of an independent trade union? The activities relied upon are: 2.1.1. The claimant calling ‘SA’ and discussing with the confidential matters brackets including the name of certain individuals) which should be discussed at a meeting with the interim Chief Executive on six February 24 referred to by the Chief Executive in a follow-up email of 21 February 2024 (‘the Conversation issue’) 2.1.2. The claimant sending, along with two other trade union representatives, a letter to the Chief Executive regarding potential equal pay claims for a mass grievance (‘the Letter issue’) 2.2. If so, was the reason or principal reason for dismissal that the claimant had taken part in the activities of an independent trade union at an appropriate time? 2.3 Was the reason or principal reason for dismissal the Claimant had departed from a process stipulated by the chief executive and initiated a conversation with SA regarding information that he knew to be privileged and confidential in which identity of the subjects were revealed by the claimant inferred by SA from what the claimant said to her, in breach of GDPR policies he being without the consent of SH to discuss her details with HR? 2.4 Was the reason for dismissal one that related to conduct or was it a substantial reason of the type such as to justify dismissal of an employee holding position which the employee held (SOSR)? 2.5 If the reason was misconduct, did the respondent act reasonably in all circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide whether:2.5.1 there was reasonable grounds for that belief;2.5.2 at the time the belief was formed the respondent be carried out a reasonable investigation;2.5.3 the respondent otherwise acted in a procedurally fair manner;2.5.4 dismissal within the range of reasonable responses.[3]In the event that one or other of the complaints succeeds, the parties were agreed that fsurther issue that I should consider was: 3.3 Does the claimant wish to be reinstated to his previous employment? 3.4 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.[4]The Tribunal considered:4.1 Those aspects it was referred to in an agreed hearing bundle comprising of 340 pages;4.2 On behalf of the claimant, the written and oral evidence of the claimant, Paul Thompson (employee and Unison trade union convenor) and Shahgufta Hussein (former employee);4.3 On behalf of the respondent, the written and oral evidence of Sam Gilmore (Head of Economic Growth, investigating officer), Erik Scollay (then Head of Adult Services and dismissing officer), Luke Henman (Councillor, chair of the Staff Appeal Committee) 10.5 Reserved judgment with reasons – rule 61 2 March 20174.4 The written and oral submissions made on behalf of both parties.
Background Facts
[5]The claimant commenced employment with the respondent on on 4 June 2004 and had occupied a number of roles, most recently in that of Senior Transport Officer.[6]For the last 15 years or so of employment, the claimant was the GMB trade union convener. He was provided with an office within the Town Hall and 11 hours of pay facility time to undertake union business related to the respondent’s GMB members in respect issues for their employees more widely.[7]A service review consultation was undertaken in January 2024, outlining savings proposals affecting the Governance and Information department with all members affected, including those who were members of all three recognised trade unions: GMB, Unison and Unite the Union.[8]On 22 January 2024, a meeting took place between members involved in the service review and their trade union representatives, the unions having agreed to deal with the consultation jointly and, furthermore, having agreed that the claimant would take the lead role for the review. This was consistent with not only how the unions had arranged themselves for a decade, but also with knowledge of and accommodation of the respondent.[9]The claimant attended on behalf of GMB members, Paul Thompson (‘PT’) attended on behalf of Unison and the representative for Unite (JG) was unable to attend. The respondent had recently been issued with a Best Value notice. There was discord amongst the members. One member, SH, who was employed as a Policy Business Partner and who was a Unison member, raised two matters: she alleged that a senior member of management had given false or misleading information to the Transformation Board overseeing the respondent’s compliance with the Best Value notice; she said that that same person had subjected her to racially motivated discrimination and harassment.[10]On 29 January 2024 the unions emailed the interim Chief Executive, Clive Heaphy and the Director of Governance and Information, asking for a postponement of (‘CH’) requesting a suspension of the service review to enable the unions to gather information about concerns they believed required further investigation. The claimant, and PT and JG received a response the same day from a Governance and Information Manager that had been named by the unions.[11]On 2 February 2024, the unions again wrote a joint letter to CH. They stated that they were now intentionally excluded the Director of Information and Governance from their correspondence and asked CH to respect their request to speak with him in private as a matter of urgency. It stated that they had come to learn of possible racism and bullying as well as a whistleblowing matter of even greater importance. To underscore their point, CH was informed this was only the second time in the of the unions’ relationship with the respondent that such a request was made.[12]On 6 February 2024, the claimant, PT and SH met with CH. SH informed CH about her belief that a senior member of management had provided false or misleading information to the Transformation Board (subsequently described as the 10.5 Reserved judgment with reasons – rule 61 3 March 2017 ‘whistleblowing issue’), as well as her belief that the same person had subjected her to race related bullying. The unions informed CH of their wish for the matter to remain private; they stated their distrust in HR and management as well as in their ability to apply fair and effective procedures. CH confirmed that he would return with proposals about how best to deal with matters.[13]On 20 February 2024, PT, explicitly on behalf of all three unions, chased CH for a response.[14]On 21 February 2024, CH sent an email to the claimant, PT and JG; it bore the subject heading ‘CONFIDENTIAL ISSUE’. Nicola Finnegan (‘NF’), Head of HR was added as a recipient of the email, also.[15]The email contained an apology for the delayed response, noted the bravery of ‘the aggrieved’ for speaking out and thanked the unions for their support. It stated that CH had given the matter much thought and that he ‘proposed three actions’.[16]The first proposal was that the consultation was completed, but implementation delayed.[17]Second, the email noted that the allegations made ‘related to race discrimination’ and that they were serious and had potential consequences for ‘the aggrieved’ as well as the Council. It noted that there was a grievance process for such matters, and there was a need for neutrality. It continued: ‘therefore, with the agreement of the aggrieved party and yourself, I propose that we deviate from this process’.[18]CH suggested that any investigation was conducted by a named director, JT, who was described as ‘independent’. The email stated that it would not be normal or appropriate to involve the internal auditor Veritau to handle what was described as an ‘individual employment matter’ and nor was that in the best interests of ‘the aggrieved’.[19]Finally, the email stated ‘I am working with HR colleagues and in particular [SA] to raise awareness of issues not just related to race, but all of the other protected characteristics’.[20]The email concluded: ‘I would be grateful if you could confirm that this is an acceptable route to [SH] and yourselves and that you wish to proceed on this basis’.[21]The email made no specific reference to the so called ‘whistleblowing’ issue and appeared to conflate that, intentionally or otherwise, with ‘the allegation that SH was the victim of race related bullying.[22]On 26 February 2024, SH contacted the claimant. She was uneasy about CH’s suggestion that she submit a grievance when the unions themselves had doubts about the integrity of the process. He said he would speak to PT, and that so should she. 10.5 Reserved judgment with reasons – rule 61 4 March 2017[23]At lunchtime the same day, the claimant contacted SA, the Equality and Diversity Officer named in CH’s email to discuss the merit of submitting a grievance. He had not obtained SH’s explicit permission to contact SA on her behalf, and he did not expect her to object.[24]In their call, which lasted 45 minutes, the claimant confirmed with SA that the discussion was a private and ‘off the record’.[25]The claimant informed SA about the service structure review, of strained relationships and about the fact that a member was making allegations of race discrimination of a member of management as well as providing inaccurate information to the Transformation Board. Although the claimant did not mention names, he provided such information as to allow SA to guess the identity of SH as well the manager sought to complain about. She objected to the suggestion that the manager being complained about was motivated by race. He asked of SA her view of the impartiality of the director proposed by CH to investigate any grievance submitted by SH. The claimant informed SA that he believed the race discrimination complaint to be weak.[26]After the call, SA informed her line manager KR about the call and its contents.[27]On 26 February 2024, the claimant sent a letter again on behalf the unions regarding what was described as an equal pay complaint; it alleged that it was unfair the respondent met the professional registration fees of staff working in the Legal Services department whilst Social Workers were required to pay their own registration fees. Suspension[28]The claimant was suspended the following day, on 27 February 2024. The letter of suspension, prepared by NF, informed the claimant that he was to be investigated about an allegation that he had: ‘shared personal and highly confidential information from a meeting and email from the Chief Executive with another member of staff, including whistleblowing and grievance details and allegations against another member of staff’.[29]She informed the claimant that GF would act as a point of contact for the claimant, but that GF was unaware of the details of his suspension, and that it was for the claimant to inform him, if he wished.[30]On 29 February 2024, Sam Gilmore (‘SG’) (Head of Economic Growth) wrote to the claimant to inform him that he had been appointed, by GF, to investigate the allegation. Investigation[31]On 5 March 2024, SG interviewed SA. SG summarised the contents of the discussion in the document that was later electronically signed by SA. SA confirmed 10.5 Reserved judgment with reasons – rule 61 5 March 2017 that she regularly took calls from the claimant about work issues, and that it was not unusual to have lengthy calls with him ‘discussing various matters’.[32]She said that the claimant had contacted her on 26 February 2024 and, in a telephone call lasting approximately 45 minutes, informed her that he had attended a meeting with CH about a whistleblowing matter and that NF did not know about the meeting. The claimant had told her that it was connected to a race discrimination allegation. He was said to have spoken about the service review, and the note continued ‘[the claimant] said that, at the end of the meeting with CH, SH told CH about the race/discrimination allegations claiming that the treatment in the service review process was racially motivated’. She said he read out (unspecified) parts of the CH’s email to her.[33]SA claimed that there was nothing private about the conversation. She said she gained the impression that the claimant was ‘itching to tell someone’ but that she, SA, was concerned about the suggestion that the Corporate Improvement Board was being misled by a member of management and that this led her to tell her line manager KR about it, immediately after the call.[34]On 12 March 2024, SG interviewed CH. A summary of the interview prepared by SG but it was not signed by CH, for reasons that were not explained to the Tribunal. In the unsigned summary, CH said he agreed to keep the department director out of the process, at the trade union’s request. CH was noted to say that he believed that the nature of the conversation justified the matter being brought to his attention ‘rather than going straight to Human Resources, particularly as the TUs were keen to keep the [department director] at arms length from the investigation process’.[35]Nevertheless, CH was noted to have brought the meeting to NF’s attention because he ‘deemed it necessary to progress the matter through the formal channels/processes’. He said he understood that the service review proposals would be implemented the day after his interview i.e. 13 March 2024 if no grievance was submitted by SH. He was of the impression that SH was not willing to put her grievance in writing and that ‘it is understood that SH would not be returning to the Council’.[36]CH did not state whether the subject heading of his email was intended to convey his own demand for confidentiality or to reflect the union’s request for confidentiality. CH made no complaint that any demand of confidentiality on his part had been breached and nor does he state that he believed he had imposed a process on SH or the unions.[37]The note continued: ‘NF made CH aware of the allegation that [the claimant] shared personal and highly confidential information from a meeting and email from the Chief Executive with another member of staff, including whistleblowing and grievance details and allegations against another member of staff.’[38]On 13 March 2024, SG interviewed SA’s line manager, KR. She later signed the notes summarising her interview. She said SA raise the matter with her and that she immediately contacted LF to report the matter to her she said she understood LF than raise the issue with CH. 10.5 Reserved judgment with reasons – rule 61 6 March 2017[39]She said her immediate concern was that the conversation between the claimant and SA ‘would be in breach of whistleblowing and potentially GDPR data sharing policies’ adding her own observation that the breach seemed to have been contained between officers within the respondent. She stated that whistleblowing matters should have been reported to Veritau, the internal auditors, but that raising the matter with the chief executive was permissible.[40]On 5 April 2024, SG interviewed the claimant. He later signed the notes summarising the contents of the interview.[41]The claimant said he knew he was discussing a delicate private matter. He said he clarified with SA whether she could talk in private and that the purpose of the course to seek advice regarding a potential race discrimination complaint. He said she asked him three times to confirm that the discussion was confidential, and he reassured her that it was. The claimant reminded SG that SA’s name was specifically mentioned in the email from CH, from which he had inferred that SA was formally involved in the matter.[42]He denied breaching confidentiality, because SA guessed the identity of the individuals from the conversation; he said he did not give any personal data and could not understand how he could be considered as being in breach of confidentiality or GDPR policies.[43]He added that if there had been a breach of trust than SA needed to explain why she had disclosed the contents of a private off the record conversation about a trade union matter with others.[44]The claimant was challenged as to why he had not complied with ‘the established process’ identified by SG in the interview as being to contact Veritau.[45]When asked about the meeting with CH, BF, consistent with the note of CH’s interview, stated that they had an understanding review process would continue, but the outcome might be suspended if a written grievance was submitted.[46]In response to the question from SG ‘Any other matter which you wish to add, in mitigation/your defence?’, the claimant said he could see no good reason why he had been suspended, that suspension should be a last resort, and that his job was wholly unconnected to the matter being investigated. He said he believed that he was being suspended because his activities were being seen as disruptive.[47]SG completed his investigation report on 13 June 2024. In it, said that there was a point of dispute as to whether in the call on 26 February 2024, the claimant named SH and others when speaking to SA, or whether SA guessed, accurately, who he was referring to from the surrounding facts. He said he considered this to be an important dispute, albeit his own summary of the interviews do not evidence such a dispute.[48]After his interview with the claimant, SG investigated the dates on which the claimant had most recently undertaken training in GDPR, Information Governance and Cyber Security and he included those dates in his report, but no details about that training 10.5 Reserved judgment with reasons – rule 61 7 March 2017 consisted of. SG included a summary of the interviews he had conducted, and he stated that the claimant was keen in his interview to highlight ‘an extremely poor and combative and antagonistic relationship’ between the unions and the respondent’s HR department. He said that was not relevant to his investigation, but confirmed that there was a culture of perceived distrust, leading to accusations of conspiracy, nothing of which he had observed in his investigation.[49]After setting out the evidence he understood he had obtained, SG summarised: ‘in conclusion, and on the balance of probabilities, I believe that privileged and confidential information, including names was shared by [the claimant] in a telephone call with [SA]’.[50]Other than his view that the claimant had informed SA of the names of the persons involved, SG did not identify what the other information was that had been shared, why it was privileged and whose confidence had been breached.[51]He continued: ‘Brian may have believed that this was a legitimate conversation with [SA] believing that she was privy to the case, involved characters and information. This belief may arise from the misinterpretation of [CH’s] email. However, it is not reasonable to infer this meaning from the text of that email.’.[52]Of the four options apparently available to SG, he recommended the matter proceed to a disciplinary hearing.[53]No steps were taken to investigate SA for partaking in the call with the claimant. Disciplinary Hearing[54]On 9 July 2024, NF wrote to the claimant, inviting him to attend a disciplinary hearing. The allegation to be considered remained unchanged in the way it was framed at the investigation stage. The claimant was reminded of his right to be accompanied and the fact that he remained suspended. A copy of the disciplinary policy was included.[55]On 9 July 2024, CB emailed the claimant to remind him that because he was suspended from work, he was not to undertake any union duties, either.[56]The Tribunal received no explanation as to why the respondent considered necessary to suspend the claimant. It appears that no review of the continued need for suspension was conducted, and if there was, it was not a matter that either the dismissing officer or the appeal panel considered it necessary to explore.[57]In his detailed preparation for the disciplinary hearing, the claimant asked a number of questions, including why SH had not been interviewed, or NF who he believed had a part in the decision to suspend him, he asked how specifically he had breached GDPR, or the respondent’s whistleblowing policy, and why SA had not been questioned about why she participated in the conversation if it was highly confidential and in breach of GDPR. He asked why no policies were contained in the disciplinary pack. 10.5 Reserved judgment with reasons – rule 61 8 March 2017[58]On 22 July 2024, the claimant attended the disciplinary hearing, accompanied by his trade union representative. SG also attended the hearing, which was chaired by Erik Scollay (‘ES’), then Director of Adult Social Care and Health Integration. A member of HR was present to support ES.[59]SG confirmed he had not interviewed SH because she was ‘not material’. He confirmed he did not interview NF because, he said, she was the ‘instructing officer’. He confirmed he had not received a signed statement from CH. The notes of the disciplinary hearing record that SG confirmed at the hearing to ES that his investigations led him to be satisfied that the unions were working together to talk about SH’s case.[60]The claimant said he felt targeted because of his trade union activities. He said his suspension was unwarranted and heavy handed, when compared with the lack of suspension of senior management about far more serious in relation to recent matters which the claimant had knowledge of. He said he approached SA because of the race allegation and SH’s lack of confidence in the grievance process and reminded ES that it was CH who indicated that SA was the appropriate diversity lead. He reminded ES that SH had not complained and restated his assertion that SA had guessed SH’s identity from the conversation. ES asked the claimant whether this was not a breach of GDPR because the claimant did not secure SH’s consent before making the call. The claimant said he could not recall whether he had done that and that he was attempting to gain some clarity before advising SH further.[61]In the notes summarising the exchanges that took place at the disciplinary hearing SG repeated his position that ‘sensitive information was shared, including names to [SA]’. The claimant said that: he believed the matter had been predetermined by NF before the investigation commenced; SH was an important witness but was not interviewed; he had not been provided with policies or procedures in the disciplinary pack; SA admitted to participating in the same conversation yet nothing was done about her involvement; the length of the suspension was unfair; he did not believe he was in breach of GDPR, but if he was it was unintentional and that he should be allowed to have private off the record conversations; he felt he was being treated differently because of his trade union activities.[62]ES delivered his decision at the end of the hearing; he verbally confirmed that the claimant was ‘in breach of GDPR’ having spoken about SH’s ‘situation’. He concluded that the claimant should have known to terminate the conversation, since he had received ‘all GDPR training’. He concluded that conducted amounted to gross misconduct and that the claimant was to be summarily dismissed.[63]On 29 July 2024, a letter signed by ES was sent to the claimant, setting out the reasons for his dismissal. The conclusions began by noting that union representatives had jointly met with CH to discuss allegations of such ‘significance’ were made that a meeting took place outside the ‘normal process’. It stated that the subsequent email CH sent on 21 February 2024 bore the heading ‘confidential issue’ and extracted parts of the body of the email, emphasising the words in the email which read ‘with the agreement of the aggrieved party and yourself’. It stated that the fact and substance of the conversation with SA was not in dispute. It continued by stating that CH had ‘determined a process to be followed’ and that it was clear 10.5 Reserved judgment with reasons – rule 61 9 March 2017 that the claimant understood CH’s direction, and that the claimant had acted ‘in obvious contravention’ of it.[64]The letter noted that no grievance had been received from SH. It noted that SH was not a member of the union the claimant represented. It stated that the claimant had failed to adduce any evidence of securing SH’s consent before speaking to SA, later concluding that the claimant did not secure her consent.[65]The letter did not arrive at any conclusion as to whether the claimant informed SA of SH’s identity, or whether SA had guessed it, but proceeded to note that the only way that SA would know of the proposal to appoint JT as the investigator of any grievance submitted by SH, was via the claimant.[66]In his oral evidence ES confirmed that he remained unclear whether the claimant had verbally informed SA of SH’s identity or whether SA had simply guessed it, adding ‘a connection as was made, that led to a broader conversation and therein lay a breach of confidentiality’. That was the first suggestion that ES had regarded the conversation as potentially acceptable, but developed into something that was unacceptable.[67]The letter stated that the claimant had failed to terminate the call once the identity of SH was known, and that this was ‘in obvious contravention’ of both CH’s email and ‘the principles of GDPR’ as well as the Council’s ‘own information governance and GDPR policies’, in respect of which, he was stated as being satisfied, the claimant had completed mandatory training.[68]It was said to be ‘curious’ that despite describing Human Resources as ‘corrupt’, the claimant chose to be open with SA and that there was no evidence that the disciplinary process was in some way motivated by his trade union role.[69]The letter said that ‘any mitigating circumstances’ had been taken into account, before confirming the decision to dismiss him summarily.[70]ES did not address the claimant’s complaint that his suspension was unwarranted because he took the view that that was, in view of his decision to dismiss, an academic matter.[71]The claimant had, at the date of dismissal, been employed for 19 years and had enjoyed a clean disciplinary record. Appeal[72]In a brief letter of appeal dated 2 August 2024, the claimant stated, amongst other things: his belief that he had been dismissed for trade union activities and it was therefore automatically unfair; that his suspension was unjust and no policies were provided to support the decision made.[73]On 19 August 2023, EJ Sweeney granted the claimant’s application for interim relief, concluding that the claimant would be able to raise an evidential basis for asserting that his dismissal was for an inadmissible reason, namely that he had taken part in the activities of a trade union. 10.5 Reserved judgment with reasons – rule 61 10 March 2017[74]On 18 September 2024, an appeal panel consisting of three councillors heard the claimant’s appeal. It was chaired by Luke Henman (‘LH’); the other two members of the panel had HR experience. The claimant attended the hearing, accompanied by his trade union representative. ES presented the management case; NF was present.[75]The appeal panel concurred with ES, recording its view that the claimant had shared highly sensitive and confidential personal information with SA. It agreed with ES that the claimant acted ‘outside the process determined by CH’ and that the claimant was unable to confirm that he had authority from SH to discuss such highly sensitive and confidential personal information. It concluded that the claimant had breached the respondent’s own policies, GDPR and now also, GDPR principles in some, unparticularised, way; it concluded that the claimant had acted in a manner amounting to gross misconduct.[76]The appeal panel recorded that there was ‘no evidence’ that the claimant had any authority to act on behalf of other unions. It concluded that: the claimant had ‘no legitimate or valid trade union reason’ to discuss the ‘complex and sensitive matters’ of governance raised by SH with SA, that it was ‘inconceivable’ that he could infer from CH’s email that SA was privy to or involved ‘in any way’ and that by discussing such matters, he did so ‘outside the agreed procedure determined by [CH]’. It considered noteworthy that the claimant had ‘repeatedly made assertions that HR and senior officers [were] institutionally corrupt’ and it considered that the fact that the claimant was ‘guarded’ in his discussion with SA indicated a lack of honest belief that he was carrying out trade union activities. It concluded his discussion was ‘wholly outside legitimate trade union activity and was motivated by gossip’.[77]The appeal panel found that NF acted appropriately by suspending the claimant, without identifying the reasons why.[78]The claimant’s appeal was dismissed.[79]The claimant had not secured express authority from SH to speak to SA, but believed he had what he described as her ‘tacit’ approval; he does not, as a matter of routine secure explicit permission from members before conducting his enquiries. He regularly spoke to SA, on an ‘off the record’, confidential, basis, evidence which draws support from SA’s own statement. SH did not know that the claimant would call SA to speak to her about SH’s concerns, and she had no objection when she learned of it. PT did not consider that by telephoning SA about his member’s concerns it was in any way unusual or going beyond their working arrangements. The Law Reason For Dismissal
The Law
[80]Section 94 ERA confers upon an employee the right not to be unfairly dismissed. It is for the respondent to show that the reason for dismissal is for a reason falling within section 98(2) or for some other substantial reason within the meaning of section 98(1). 10.5 Reserved judgment with reasons – rule 61 11 March 2017[81]A reason for dismissal i.e. the facts known or beliefs held that led it to dismiss: Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA. The reason given by an employer at the time of dismissal is evidence of the reason, but the decision maker’s motivation must be considered: Croydon Health Services NHS Trust v Beatt [2017] ICR 1240, CA.[82]It is automatically unfair to dismiss an employee if the reason (or if more than one, the principal reason) is his taking part in 'the activities of an independent union' at an appropriate time, or proposing to do so: s. 152(1) TULRCA 1992.[83]The expression, 'activities of an independent trade union' is deliberately not defined, since circumstances in the real world vary so widely: Chant v Aquaboats Ltd [1978] ICR 643. The expression should not be construed restrictively: Dixon and Shaw v West Ella Developments Ltd [1978] IRLR 151, EAT; British Airways Engine Overhaul Ltd v Francis [1981] IRLR 9 EAT.[84]It is essentially a question of fact for the tribunal whether some act or event may fairly be described as an activity of the union; the tribunal should determine that question as a matter of industrial common sense: Brennan and Ging v Ellward (Lancs) Ltd [1976] ICR 222, EAT.[85]Phillips J said in Lyon and Scherk v St James Press Ltd [1976] ICR 413 EAT: ''The marks within which the decision must be made are clear: the special protection afforded by [s 152] 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.'' And also that '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 dismissal which would not be unfair'.[86]The CA cited these passages with approval in Morris v Metrolink Ratpdev Ltd [2018] EWCA Civ 1359. They CA distinguished between dismissing an employee for trade union activities and dismissal for things done or said by an employee in the course of trade union activities which can fairly be regarded as a distinct reason for the dismissal notwithstanding the context in which they occurred. The CA said that the reference to acts which are 'wholly unreasonable, extraneous or malicious' captured the flavour of the distinction but should not be read as definitive and the use of the phrase 'wholly unreasonable' had been deliberate.[87]Also in Morris, the CA approved the words of Pill LJ in Bass Taverns Ltd v Burgess [1995] IRLR 596, CA: he said '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] of the Act'. The claimant had been excessively scathing and critical of the employer when, at its invitation, he offered the union’s 10.5 Reserved judgment with reasons – rule 61 12 March 2017 perspective at an employee induction course nothing he had said went beyond the rhetoric or hyperbole which might be expected of any evangelist. Fairness[88]The test of whether the dismissal was fair or unfair is to be considered neutrally having regard to the objective standards set out at section 98(4). The Tribunal is to take the words as the starting point; it must be careful not to substitute its own view for that of the employer. The approach when considering the section is the well known band of reasonable responses test, including the decision to dismiss, which must be assessed by reference to the objective standard of the hypothetical employer. In misconduct cases the Tribunal is guided by the decision in BHS Stores v Burchell [1978] IRLR 379, EAT. Where dismissal is for gross misconduct, the Tribunal must be satisfied that the employer acted reasonably both in characterising the conduct as gross misconduct and then deciding that dismissal was the appropriate punishment: Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854. Reinstatement[89]Where a complaint of unfair dismissal is well founded, the Tribunal must first explain to the complainant the potential orders for reinstatement or re-engagement that may be made pursuant to section 113 (read together with sections 114 to 116). If the complainant wishes, the ET will first consider making such an order (section 112(3).[90]Section 116 ERA then provides as follows: ‘116. Choice of order and its terms (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account- (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to his dismissal, whether it would be just to order his reinstatement’.[91]At this stage, there is a neutral burden of proof: these are issues for the ET itself to resolve, having regard to the circumstances of the case before it: British Council v Sellers EAT 2025, EAT 1.[92]Where an employer states its belief that the employee has misconducted himself such that he could no longer be trusted in its employment, the Tribunal must ask itself whether the employer had a genuine and rational belief that the employee had engaged in conduct which had destroyed the relationship of trust and confidence and practicability will not be determined on the basis of emotion, assertion or speculation: Lincolnshire Hospitals NHS Foundation Trust v Farren 2017 ICT 513, approved by the Court of Appeal in Kelly v PGA European Tour 2021 ICR 1124. Discussion and Conclusions The Reason for the Dismissal – Automatically Unfair Dismissal 10.5 Reserved judgment with reasons – rule 61 13 March 2017
Discussion and Conclusions
[93]ES made no enquiries of, or findings in relation to what, precisely, was the ‘information’ the claimant should not have shared, or to whom that information was said to be or should be regarded as ‘personal’. SG had informed ES that SH’s evidence was ‘immaterial’ and ES did not seek further information, evidence or particularity about whether the ‘information’ was personal to anyone else, such as, conceivably, CH, the manager named by SH, or another union.[94]Similarly, ES did not explore whether the subject heading of the email sent by CH was intended to impose confidentiality on its recipients, or to reflect the confidentiality the unions had sought of him.[95]ES did not distinguish between discussions the claimant had about SH’s race discrimination allegation and her ‘whistleblowing’ allegation i.e. that the same member of management had misled or provided false information to the Transformation Board. That formed no part of his oral or written reasons for dismissal, his management statement of case for the appeal panel, nor did it feature in his written evidence.[96]I conclude therefore that ES decided that to discuss with SA any aspect of the meeting that took place on 6 February 2024was unacceptable.[97]The claimant was not simply ‘aware’ of the contents of that meeting, as ES sought to suggest in his written evidence; he had requested the meeting on behalf of all three unions and he partook in it. He did so in his role as trade union representative. Similarly, the email response from CH was directed to the claimant, as well as others, in their capacity as union representatives.[98]SH’s allegations arose in the context of the service review in respect of which the claimant held the lead union role. SG confirmed to ES at the disciplinary hearing that he was satisfied on investigation that the claimant was acting collectively with other unions. ES did not find that the claimant telephoned SA in anything other than his capacity as a trade union representative. ES did not explore with the SA’s expressed opinion that the claimant was ‘itching to tell someone’. In any event even if that were the case, or indeed the claimant had seized upon the opportunity to discuss the allegations with alacrity, I find contrary to the decision of the appeal panel, it does not follow that he was acting outside his capacity as a trade union representative.[99]ES did not make any specific findings about what aspects of CH’s email the claimant shared with SA, that was unacceptable; as with the meeting, I conclude that the claimant making any reference the contents of CH’s email of 29 February 2024 was unacceptable.[100]In deciding to dismiss the claimant, ES did not seek to distinguish between discussions the claimant had about SH’s race discrimination allegation on the one hand, and discussion about her ‘whistleblowing’ allegation on the other. For the avoidance of doubt, I do not consider any such distinction can be properly made in the manner found by the appeal panel, so as to take the claimant’s conduct, in whole or in part, outside the activities of a trade union. 10.5 Reserved judgment with reasons – rule 61 14 March 2017[101]Whereas the appeal panel did not explicitly conclude that the discussion about SH’s complaint of race discrimination did amount to ‘legitimate’ trade union activities, it concluded that the discussion about SH’s whistleblowing allegation was ‘wholly unacceptable’. The claimant discussed both allegations in the same telephone call. The discussion was with SA, who was named in the email sent by CH as being someone he intended to work with on equality issues. One of SH’s allegations was that she had been discriminated against. The other allegation was made also by SH, and was also of the same member of management. SH was considering whether to submit a grievance in relation to those allegations. Both he and SH were concerned to ensure that any grievance submitted was considered by an impartial investigator and the claimant discussed SA’s view of the suggested impartiality of JT, the person named in CH’s email. Both allegations arose in the context of a consultation about a service review, in respect of which the claimant held the lead union role. The allegation that management had sought to mislead the Transformation Board was undoubtedly serious, but it cannot properly be said that discussion about it, in these circumstances was so wholly unreasonable that it can be properly regarded as separable from the rest of the call.[102]Returning to the decision of ES. He found that to make any reference to the meeting or the email amounted to a ‘contravention’ of a process that was either agreed with, or imposed on, the claimant and other recipients and in respect of which he believed that CH had demanded confidentiality. There are two difficulties with this finding. First, it was an interpretation of CH’s email that is unsupported by a plain reading of it: he ‘proposed’ matters in respect of which he explicitly sought confirmation. That misinterpretation was, it appears, coincidentally repeated by the appeal panel.[103]Secondly, and more germane to the issue in point, is the wholesale absence of any consideration on the part of ES, or subsequently the appeal panel, as the how CH purported (on their interpretation) to ‘determine a process’ that the unions were required to comply with in relation to how they represent the interest of their own members.[104]Put more bluntly, both ES and the appeal panel found that CH had prohibited the unions from speaking to others about SH’s allegations, and that the claimant contravened that direction by speaking to SA. He was dismissed because he failed to adhere to CH’s direction as to how he was to go about representing the interests of union members.[105]For the avoidance of doubt, I am satisfied that the claimant’s concern to ensure his discussion with SA was confidential was nothing out of the ordinary manner in which he conducted ‘off the record’ discussions with management; it did not indicate, as the appeal panel appeared to suggest, that he had, or even might have, acted in bad faith.[106]The claimant did not discuss the meeting with CH or his email with anyone other than SA; the allegation against the claimant came about because SA informed her line manager, who in turn spoke to NF, who in turn, on a reading of CH’s unsigned statement, ‘made CH aware of the allegation’. No complaint was ever received by the respondent about the claimant’s conduct, whether from CH, SH, SA or anyone else. No investigation was compromised by the discussion; SH had not and did not 10.5 Reserved judgment with reasons – rule 61 15 March 2017 at any stage, submit a written grievance. Thus, insofar as the claimant was found to have committed a wrong, it was one without a victim and one with no discernible consequence. Nevertheless, the conduct found was considered to be so serious as to attract a summary dismissal. By contrast, whereas a factor in the decision to dismiss was that the claimant failed to terminate the call when it became apparent that SA knew the identities of those referred to in the discussion, SA was not investigated or disciplined for partaking in the same discussion.[107]I am satisfied that the claimant was dismissed because conducted a confidential ‘off the record’ discussion with a member of the HR team, of the type that was typical of trade union representatives carrying out their function and which the claimant himself had routinely carried out. The discussion amounted to the activities of an independent trade union; no dispute arises between the parties that it was carried out at an ‘appropriate time’. I conclude that the decision to dismiss the claimant was for an inadmissible reason and that the complaint that he was automatically dismissed for taking part in the activities of an independent trade union at an appropriate time, contrary to section 152(1)(b) TULRCA 1992, is well founded.[108]There are several other matters that fortify my conclusion, only some of which are as follows. The allegation, as drafted, was nebulous; it demanded further particularity in order to be fairly understood, defended and, if appropriate, upheld. What was the specific ‘information’ that the claimant was criticised for sharing, to whom was it ‘personal’ and why was it so serious as to merit disciplinary proceedings? Who had demanded confidence and in relation to the specific information; was the confidence that of the unions, of SH, or of CH? Furthermore, the claimant was not informed, despite seeking an explanation, as to why it considered appropriate or necessary to suspend the claimant from his employment as a Transport Officer whilst the investigation was underway. SG was satisfied that the claimant had breached the respondent’s policies and ‘GDPR’ and this became a factor in the decision to dismiss him, when that formed no part of the allegation against him. The claimant was not provided with the provisions he was found to have breached, in order to defend himself or launch a meaningful appeal against that finding; the appeal panel did not specify the alleged breaches, either. If any evidence that SH could give was considered ‘immaterial’ to the investigation, it is unclear whose personal data was found to have been unlawfully processed contrary to GDPR. Neither SG, ES, or the members of the appeal panel, all of whom enjoyed HR support throughout the disciplinary process considered it necessary to grapple with these considerations before arriving at their conclusions; their collective incuriosity is highly troublesome especially when considering that at each of the three stages, the claimant’s expressed distrust of HR and senior management did attract comment.[109]There was no compelling evidence to suggest that the letter the claimant sent on 26 February 2024 relating to payment of professional registration fees was a factor in the decision to dismiss the claimant. The complaint of automatic unfair dismissal on this ground is not well founded. ‘Ordinary’ Unfair Dismissal[110]I conclude that ES genuinely believed that the claimant had committed an act of misconduct by discussing the meeting with CH on 6 February 2024 and the contents 10.5 Reserved judgment with reasons – rule 61 16 March 2017 of his email on 29 February 2024 with SA. That was a reason relating to conduct, and therefore a potentially fair reason.[111]For the reasons set out above, however, I am not satisfied that was not a conclusion that was based on reasonable grounds after a reasonable investigation. The conclusion that the claimant had breached provisions in the respondent’s policies and of the GDPR when they did not form a part of the allegation he was charged with, and were not particularised, despite the claimant’s request to do so, rendered the decision procedurally unfair. Even if the conduct for which the claimant was dismissed was, looked at objectively, capable of amounting to gross misconduct, the respondent did not act reasonably in characterising it as such, in particular having regard to the absence of any complaint or identified adverse impact of his actions. Furthermore, taking those matters into account, together with his length of service and his clean disciplinary record, I conclude that the decision to dismiss him fell outside the band of reasonable responses open to an employer acting reasonably. Reinstatement[112]The claimant seeks an order reinstating him to his role as Senior Transport Officer. The claimant did not, on my findings above, cause or contribute to his dismissal; the respondent accepts that on a finding that the claimant was automatically unfairly dismissed, the conduct for which he is afforded special statutory protection cannot constitute blameworthy conduct.[113]The respondent does, however, contend that it is not practicable for it to comply with an order for reinstatement. On the evidence of ES, contained in his supplemental statement, the respondent contends that the respondent could no longer trust the claimant were an order for reinstatement made; that the respondent believes that he wilfully breached confidentiality, that he acted in bad faith and was motivated by a desire to gossip and case negative aspersion s in order to diminish the reputations of and relationships between colleagues.[114]There is no presumption in favour of an order for reinstatement and nor does the respondent bear any burden of disproving practicability; the burden is a neutral one and the issue is one for the Tribunal is determine in light of all the circumstances as a whole.[115]As above, ES genuinely believed when dismissing the claimant that he had wilfully breached a direction of CH and furthermore, I accept that that belief subsequently developed into a conviction that the claimant, acting as he did, was motivated by a desire to gossip and cast aspersions. But it does not follow, and I do not find, that the respondent holds a relational belief that the claimant has engaged in conduct that has destroyed the relationship of trust and confidence, so as to render reinstatement impracticable. On the evidence before me, CH did not ‘determine a process’ that the claimant flouted; he proposed a route by which SH’s written grievance might be handled, and even then it was subject to the agreement of SH and the unions. Nor did CH complain in his draft statement that he demanded confidentiality either in the meeting or in respect of his email; he referred only to his respect of the unions’ demand for confidentiality. In addition to the supplemental statement of ES, I have considered, for the avoidance of doubt, the passages in the 10.5 Reserved judgment with reasons – rule 61 17 March 2017 investigation report, the letter confirming dismissal and the letter confirming dismissal of the claimant’s appeal, the respondent’s comments that the claimant has been repeatedly critical of the respondent’s HR and senior management. The evidence underpinning those assertions were not before me, or identified to me. I therefore attach limited weight to this factor.[116]Nor do I accept, as the respondent invites me to accept, that the claimant’s own words evince a breakdown in trust and confidence. He was quoted in his investigation meeting as having ‘no trust in the grievance process’ and later in the context of his appeal against his own dismissal as having ‘no confidence in the grievance and disciplinary process’; these assertions unsurprising as they are given the context in which they were made. In his own statement, the claimant contends that he seeks for his own grievance appeal in an unrelated matter and which was suspended pending his disciplinary outcome, to be dealt with ‘in accordance with ACAS guidelines’, an uncontroversial statement to make, on any view. The matters that the respondent asks me to have regard to fall significantly short, in my view, of demonstrating that the claimant lacks trust and confidence in his employer so as to render an order for reinstatement impracticable.[117]I have little doubt that, in common with similar cases, the disciplinary proceedings, and the litigation process have not served either party well. An order for reinstatement may well add to that strain initially. But I do not consider that those matters, of themselves mean that an order for reinstatement could not be complied with by the respondent, particularly with the active cooperation of the claimant.[118]I exercise my discretion to make an order for reinstatement.[119]As agreed, a further case management hearing will be set down to consider what directions are necessary to prepare for the rest of the remedies hearing.