Mr T Kirsopp v Sykes Marine (Hydromaster) Ltd 3201267/2017
EMPLOYMENT TRIBUNALS
Case No 3201267/2017
Between
Mr T KirsoppClaimantSykes Marine (Hydromaster) LtdRespondent
Before
Employment Judge Brook
Members
Ms M LongMr M RoweIn person for claimantMr K Sonaike (instructed by Counsel) for respondentDate 19 March 2018
REASONS
[1]In this matter Mr Kirsopp appeared in person and the Respondent was represented by Mr Sonaike of Counsel. Mr Kirsopp brought a claim in automatic unfair dismissal by reason of disclosing to his employers that he had been an active trade union member in previous employment and in consequence had been dismissed. He was not, at the time of disclosing this past involvement, a union member nor had he any intention of re-joining. There were no claims in detriment .[2]He came to make this disclosure in January 2017 in the course of a discussion between himself and colleagues with members of Respondent’s management over the Company’s then proposal to bring forward holiday entitlements so that these be taken in what was then a slack period for the Company. Mr Kirsopp and his colleagues initially took exception to this proposal but after discussion between management and employees the matter was settled. In the course of those discussions, in which Mr Kirsopp had taken a lead, he had mentioned his previous experience of being a member and workplace representative of a trade union.[3]He now claims that it was this disclosure that eventually led to his dismissal in early August 2017, shortly before he would otherwise have completed the two year qualifying service period required to enjoy the protection from ‘ordinary’ unfair dismissal pursuant to the provisions of the Employment Rights Act 1996.
Evidence
[4]We heard evidence from three employees of the Company on behalf of the Respondent, namely Mr Rapfael Segui, Mr Karel Steven Linskens and Ms Amanda Pavitt. Mr Kirsopp gave evidence on his own behalf. All four witnesses’ evidence was provided in written format taken as read by the Tribunal with the opportunity for cross examination.[5]Mr Kirsopp relied upon the one time in which he mentioned his previous membership of a trade union and his union activities in that job. Before the January 2017 episode it was common ground that Mr Kirsopp received good appraisals and had accompanied management on overseas trips and had generally been regarded as a good employee. After that disclosure Mr Kirsopp there were no obvious immediate consequences, The workload dramatically increased from march onwards and he told us that he came to notice a gradual change in attitude which he attributed to the disclosure of his previous membership of a trade union. So far as his dismissal was concerned this was said by the Respondent to be on grounds of his capability. Mr Kirsopp had proved, according to the Respondent, to be unable to take instruction, had been slow in completing tasks, and made mistakes despite being trained. This Mr Kirsopp denied though it emerged both that he had difficulties with the designated trainer on the specialised equipment produced by the Respondent, Mr Henk, and had come to regard the organisation and workshop management as ‘chaotic’.[6]For the Respondent Mr Sonaike put to Mr Kirsopp that if in January 2017 the Respondent had taken against him by reason of his previous union activity then how did the Claimant explain the increase in salary at precisely this time. Whilst it was common ground that the Company had given Mr Kirsopp a pay rise Mr Kirsopp stated that this had simply been to bring his pay into line with his peers and Mr Sonaike did not pursue the point. It was also common ground that January to March 2017 had been a quiet period for the Respondent and it was put to Mr Kirsopp why, if the Company had taken exception to his having once been a trade union member, he had not been laid off as Clause 4.3 of his employment contract (Page 34 of the Bundle) permitted? Mr Sonaike put it to Mr Kirsopp that in fact no one, importantly not Mr Kirsopp, had in fact been laid off but all had been kept on full pay and the time used to refurbish and re-organise the workshop. Mr Kirsopp appeared to be unaware that his contract permitted such lay off and accepted that neither he nor his colleagues were laid off. He also accepted that after this slack period there followed a period of considerable pressure and activity as the Company struggled to meet deadlines on orders.[7]There was the one disclosure by Mr Kirsopp in January 2017 and his dismissal did not occur for another six months. In that intervening period the work load substantially increased. Mr Kirsopp told us that his tools would be routinely ‘borrowed’ without his permission, resulting in him spending time when he could otherwise be working or being trained in trying to locate these tools. We heard from Mr Kirsopp of the deteriorating relationship between himself and Mr Henk, the consultant to the Respondent business and responsible for training Mr Kirsopp and his colleagues on the complex machinery the building of which was the mainstay of the Respondent Company’s business. Mr Kirsopp told us that all was not well with the way that the training was carried out and the general organisation of the workshop was, in his view, chaotic. He found Mr Henk’s training to be partial, certainly sporadic, and that Mr Henk came to ignore him so far as training was concerned. He would give Mr Kirsopp ancillary tasks which caused Mr Kirsopp to fall behind with the training aspects of the role to the extent the he was forced into the position of seeking guidance from those whom Mr Henk had already trained on a ‘one to one’ basis. Mr Kirsopp stated that he did not think Mr Henk was aware of his previous union involvement, though ‘he could have been’.[8]Mr Kirsopp’s complaints to management about all this went unheeded. Instead it was in this way that he began to be seen as not being up to the job, the Company coming to form the view that Mr Kirsopp did not work well under pressure, was slow in his work, unwilling to take instructions and unwilling to be trained. Mr Kirsopp disputed this characterisation of his work and abilities but to some extent conceded that this might have been how he came to be seen by management, though this was entirely beyond his control. After March 2017, the workload for all employees had markedly increased and the management’s perception of Mr Kirsopp as struggling to fulfil the demands of his job became, in their eyes, ever clearer. This, said the Respondent was the reason for Mr Kirsopp’s dismissal. Mr Kirsopp was shocked by the abruptness of his dismissal which had come without warning.
The Law
[9]The right not to be dismissed on trade union grounds is to be found at Section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA). This provides that a dismissal is automatically unfair if the principal reason was that the employee was, or proposed to become, a member of a trade union. If an employee is shown to have been dismissed because of his or her past membership of a trade union then this will also be covered by 152 (1), even if the employee only belonged to a union in previous employment & was no longer a member and/or had no intention of again becoming a member (McKendry v Avery-Hardoll Limited EAT/369/77).[10]In a claim of ordinary unfair dismissal the employer bears the burden of showing that the reason for dismissal was one of the potentially fair reasons under Section 98(1) of the Employment Rights Act 1996. In a claim of automatically unfair dismissal under TULRA the issue is somewhat more complicated and hinges on the question of whether the employee in question had sufficient qualifying service to claim unfair dismissal in the normal way, or is instead relying on the exception to the qualifying service provision under section 154 TULRA which waives the qualifying service requirement.[11]The qualifying service required to bring a claim in ordinary unfair dismissal is two years continuous employment with the employer in question. Mr Kirsopp lacked sufficient qualifying service for ordinary unfair dismissal with this Respondent and so relies upon the 154 exception. In Smith v Hayle Town Council 1978 ICR 996 the Court of Appeal held that in claims alleging unfair dismissal on trade union grounds where the employee has insufficient qualifying service to bring a claim in ordinary unfair dismissal then the burden of proof is on the employee to show that the dismissal was for a reason falling under Section 152 TULRA. The reason relied upon by Mr Kirsopp is that he had been a member of a trade union in his previous employment & this is why this Respondent terminated his employment.[12]As to what this burden amounts to in practice, in Smith v Hayle Lord Denning MR said that once the Claimant employee had presented some prima facie evidence that he or she was dismissed for the prohibited reason then it is up to the employer to produce evidence to the contrary, sufficient on the balance of probabilities to displace the Claimant's prima facie case, failing which the Tribunal could infer that the reason for dismissal was trade union membership (whether past, present or even mistakenly assumed by the employer).[13]In deciding whether a prima facie case is established a Tribunal will look to a number of factors including the proximity of the dismissal date to the date on which the employer became aware of the claimant's union membership, the attitude of the employer to trade unions generally and in its workplace in particular, and whether the employer's conduct was consistent with its alleged reason for the dismissal.
Findings of Fact
[14]Whilst we are quite prepared to believe that Mr Kirsopp’s difficulties were not entirely of his own making this nevertheless was the impression created in the minds of his employers. That impression was not obviously connected with anything said or done in the course of the January meeting about holidays, nor was there evidence from which this could be implied.[15]The Tribunal is satisfied that when on 3rd August 2017 Mr Kirsopp was handed his dismissal letter, there had been no warning that he was about to be dismissed, indeed he was expecting no more than a warning as to his conduct and he felt that he had given a good account of himself as to why it appeared that he was not ‘up to the job’. We are also satisfied that the decision to dismiss Mr Kirsopp was made before Mr Kirsopp gave his account as to why he felt this perception was incorrect, not least because the dismissal letter handed to him on 3rd August had already been typed before Mr Kirsopp had been given the opportunity to give his side of the story. It seemed evident to us that no amount of explanation on the part of Mr Kirsopp was going to change that decision.[16]I pause here to make two observations. First that had this been a case of simple unfair dismissal then the Tribunal have little doubt that this would have been an unfair dismissal, certainly from a procedural point of view. Whilst it is true to say that the Respondent was not required to undertake a fair dismissal procedure, for want of Mr Kirsopp yet having completed a qualifying period of service to enjoy protection from ordinary unfair dismissal, the lack of real inquiry as to what might lie behind Mr Kirsopp’s impression of not meeting requirements is all too apparent. Second that the reason for the abrupt timing of this dismissal might well be connected to the fact that Mr Kirsopp’s qualifying period of two years was fast approaching. However, even if that does explain the timing and abruptness of his dismissal, we are left with whether the principle reason for that dismissal was connected to his previous trade union activity. Paradoxically the timing of the dismissal tends to lend further support to the Respondent’s submission that the dismissal was related to its perception of Mr Kirsopp’s supposed failings, and unrelated to prior union membership, in that it chose this time and not some earlier time to terminate his employment.[17]The task for the Tribunal is to hear and then weigh the evidence on the balance of probabilities. It is for the Tribunal to determine whether it was the disclosure of prior trade union membership that was the effective cause of this dismissal and to find that we would need to discount the Respondent’s account of why this dismissal came about. On the evidence we accept, in part because of Mr Kirsopp’s own evidence of his difficulties with Mr Henk, that as the workload increased the Respondent perceived Mr Kirsopp as not being up to the job, not showing enthusiasm for the work, having difficulty in taking instruction and training, and prone to making mistakes. This was the evidence on the part of the Respondent but, as already observed, it is consistent with Mr Kirsopp’s own evidence of his difficulties with Mr Henk, how he felt there was no structure in the business, how his tools would be borrowed, and how he would on occasion look ‘lost’ by reason of all this, all of which tended to support the Respondent in its unfavourable perception of Mr Kirsopp’s abilities. Certainly, there was no evidence of any other conversations, or remarks, about his membership or about trade unions in general, in the more than six months from the January disclosure to the August dismissal. We are satisfied that this growing perception of Mr Kirsopp’s supposed failings, rightly or wrongly, was the cause of the dismissal. There was no evidence in support of any linkage between the one disclosure of past union activities and the subsequent dismissal some six months later.[18]The speed and abruptness of the dismissal we suspect might have been by reason of the approaching time qualification for ordinary unfair dismissal but, as already observed, prior to that time an employer can dismiss for any reason providing it is not itself an unlawful reason, even if that reason is misplaced or ill judged. We cannot say it was misplaced or ill-judged here, but that the decision to dismiss was made before Mr Kirsopp put his side of the story is clear.[19]Accordingly, Mr Kirsopp’s claim for dismissal by reason of trade union membership, albeit past membership, does not succeed and the claim is dismissed.