MR TAPLIN v C. SHIPPAM LTD [1978] UKEAT 117_78_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1978] UKEAT 117_78_0707Case No Appeal No. UKEAT/117/78
Between
MR TAPLINAPPELLANTC. SHIPPAM LTDRESPONDENT
Before
The Hon. Mr. Justice SLYNNMr. R. V. CooperMr. E. HumphriesDate 7 July 1978
[1]MR. JUSTICE SLYNN: Mr. Taplin, the employee, was dismissed from his employment by C. Shippam Ltd., the employers. He applied to an industrial tribunal for interim relief under section 78 of the Employment Protection Act 1975 . The chairman of the industrial tribunal acting alone pursuant to section 80(4) of the Act declined to make an order. The employee appeals to this tribunal. Section 78(1) provides that an employee who complains to an industrial tribunal that he has been unfairly dismissed and that the reason for the dismissal was that he had taken or proposed to take part at any appropriate time in the activities of a particular independent trade union of which he was, or proposed to become, a member might, subject to the following provisions of the section, apply to the industrial tribunal for an order under the section. Section 78(2) provides that an industrial tribunal shall not entertain an application under the section unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination, and that before that period a certificate in writing is presented to the tribunal signed by an authorised official of the independent trade union of which the employee was a member, stating that on the date of the dismissal the employee was or had proposed to become a member of the union and that there appeared to be reasonable grounds for supposing that the reason for his dismissal was one alleged in the complaint. Section 78(5) provides:
"If on hearing an application under this section it appears to an industrial tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the complainant was unfairly dismissed and that the reason for the dismissal or (if more than one, the principal reason) was a reason mentioned in subsection (1) above, the tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on an application under the section ...."
[2]The industrial tribunal must then ask the employer whether he is willing to reinstate or re-engage the employee and if the employer is willing to reinstate the employee then the tribunal makes an order to that effect. If the employer and the employee are willing that the employee should be re-engaged in some other job then the tribunal may make an order to that effect. If the employee refuses to be re-engaged in another job on reasonable grounds then an order may be made for the continuation of his contract of employment.[3]If the employer states that he is unwilling either to reinstate the employee or to re-engage him under the terms provided in section 78(5) , the tribunal is required to make an order for the continuation of the employee's contract of employment. Section 79 provides that if an order is made for the continuation of a contract of employment, that contract shall continue in force as if it had not been terminated until the determination or settlement of the complaint. This is only for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters and for the purpose of determining for any purpose the period for which the employee has been continuously employed. The tribunal is required also to make an order as to the amount to be paid by the employer in respect of each normal pay period. By section 80 of the Act, an application may be made for revocation or variation of an order, and an employee may apply to an industrial tribunal if he alleges that the employer has not complied with the terms of an order made by the tribunal.[4]For the purpose of determining whether the employee has taken part in the activities of a particular independent trade union at any appropriate time the definition in section 53 applies. Appropriate time is a time which is either outside the employee's working hours or is a time within his working hours at which in accordance with arrangements agreed with or consent given by his employer it is permissible for his to take part in those activities.[5]Having heard the evidence, the chairman in the present case found that the employee was a member of the Association of Scientific, Technical and Managerial Staffs (A.S.T.M.S), an independent trade union. A meeting was called on October 19, 1977, because the employers wished to assess the feelings of the sales force in the north-east and the north-west regions as to whether or not they were prepared to accept a company participation scheme which had been devised with a view to regularising negotiations between staff and management relating to their pay structure.[6]This meeting had followed a period in which the employers had been prepared to recognise A.S.T.M.S. so far as the sales force was concerned. The union was not satisfied with the recognition rights suggested by the employers and wanted negotiating rights. The agreement proposed by the employers excluded negotiating rights for the union and if the inter-company participation scheme were adopted it was, as the chairman of the industrial tribunal found, unlikely that the union would in future obtain negotiating rights. The employers organised meetings with the staff in different parts of the country. One was held in London on October 18 when a majority of 10 was in favour of the employers's scheme. The relevant meeting took place in Wakefield on October 19.[7]Seventeen persons, comprising the sales staff of the employers and two divisional sales managers, attended that meeting. The employee was the divisional sales manager for the north-east. Mr. Bryan, the divisional sales manager for the north-west, was also there and he was at the time the A.S.T.M.S. representative for his division. The employee was a well-known member of the union and was about to be elected as union representative for his division, though he had not been so elected at the date of the meeting.[8]All the sales staff in the north-east and the north-west were members of the union with two exceptions, employees who had only just been appointed. It was agreed that a ballot should be taken at the end of the meeting. The meeting was an informal one but the employers through Mr. Turner and Mr. Caseby, their personal manager, were going to put over the employers's recommendations concerning the participation scheme. It was, as the chairman of the industrial tribunal found, virtually inevitable that the trade union point of view would be put over by the trade union members at the meeting. Both the employee and Mr. Bryan put their arguments and at the end of the meeting 14 of those present voted against the company scheme, one voted for it and two of the staff abstained.[9]Following the meeting the employers, by their chairman and the managing director, wrote to the employee on October 26, 1977. This letter referred to a report alleging gross misconduct by the employee at the Wakefield meeting to discuss the company participation policy. The employers's chairman confirmed that the employee had been suspended on full pay pending inquiries. On October 27 the employee replied, asking for details of the allegations which were made against him. On November 8, 1977, the employers wrote to the employee saying that they had come to the conclusion that he should leave the company and that what had happened on October 19 provided further examples of his lack of confidence in the employers's policies and management. He was accordingly given the opportunity of resigning, failing which he was told that he would be dismissed and he was asked to give his reply by November 14. His dismissal finally took place on November 25 pursuant to a letter dated November 17. The employee was on November 23 provided with a statement of reasons which set out a number of matters which were relied upon by the employers's company. The first of these was the misbehaviour at the meeting which, in the light of his previous record, was said to constitute gross misconduct. It was said that his conduct at the meeting was fundamentally damaging to his good relations and harmony with, as well as being blatantly disloyal to, his superiors and subordinates. His attitude and language were said to be unnecessarily discourteous, rude and belligerent towards Mr. Caseby without reasonable cause. In addition a number of other matters going back to 1973 were set out, in which it was contended that the employee had behaved either contrary to the employers's interest or in a way which was a breach of their code of discipline or which was unacceptable to the employers.[10]In his decision the chairman of the industrial tribunal directed himself as to the meaning of "likely" in section 78(5) . He referred to a previous decision of the industrial tribunal of which he had been chairman in Johnson v. Great Clowes Discount Warehouse Ltd. (unreported), November 5, 1976 . In that case the industrial tribunal had drawn a distinction between "possible" (where the tribunal considered that there would be a less than 50 per cent. chance of success), "probable," which was regarded as being more likely than not, when the chance of success would be more than 50 per cent., and "likely," where the tribunal said that this meant "that the chances have to move a degree nearer certainty than would be the case if the word ‘probable’ had been used." They referred to the Shorter Oxford English Dictionary definition of "likely" as "seeming as if it would .... prove to be as stated." They concluded that the word "likely" is a degree nearer certainty than would be the case if only the word "probable" had been used.[11]Before us, as before the industrial tribunal, Mr. Hands has contended that this is imposing too high a standard of proof upon the employee. He says first that "likely" means having "a reasonable prospect of success." In the alternative that if this is wrong it means that the employee must show that there is "a real possibility of success." Mr. Hands also contends that all that has to be shown is that the employee's prospect of success is "substantial" as opposed to "speculative," a a distinction drawn by Lord Reid in a different context in Davies v. Taylor [1974] A.C. 207 , 212.[12]He then refers to us Dunning v. United Liverpool Hospitals's Board of Governors [1973] 1 W.L.R. 586. The Court of Appeal was there concerned with the interpretation of section 31 of the Administration of Justice Act 1970 , which provides that a person who is likely to be a party to subsequent proceedings may apply to the High Court for an order that a person who appears to the court to be likely to be a party to proceedings shall disclose and produce documents in his possession. In that case Lord Denning M.r., at p. 590, said that "likely" meant "May" or "may well be" and James L.J., at p. 594, construed "likely" as involving a "reasonable prospect." Mr. Hands has also referred us to the judgment of Wallace P. in the Court of Appeal in new South Wales in Livingstone-Thomas v. Associated Newspapers Ltd. [1969] 1 N.S.W.R. 771 in which the word "likely" in section 5 of the Defamation Act 1958 is construed in the sense of "a tendency or real possibility."[13]These point in one direction, but we have also been referred to Home Counties Dairies Ltd. v. Skilton [1970] 1 W.L.R. 526 , in which Salmon L.J. said, at p. 536:
"The words ‘likely’ or ‘probable’ have a wide range of meanings which vary according to the context in which they are used and which have been subject to considerable differences of judicial opinion: ...."
[14]Accordingly, although we of course accept the definitions of "likely" in the cases which have been referred to us, we have to consider what is the shade of meaning of this word in the context of this particular statute.[15]Mr. Hands's argument is that this statute increases the powers which are given to tribunals in relation to the reinstatement of dismissed employees. He says that this particular provision should be capable of being readily invoked because Parliament intended that employers should be discouraged from dismissing employees because of their involvement in union activities. Their contracts should be reinstated if they can show a reasonable prospect or a real possibility of establishing that they were dismissed because of their involvement in union activities. Moreover, he says that reinstatement is the normal way of dealing with a case where a man has been dismissed because of his involvement in union activities and it is therefore right that he should be the subject matter of an interim order so that he can carry on with his union activities pending the determination of an industrial tribunal. Mr. Hands submits that it is unjust to require a man to prove to a higher standard that the reason for his dismissal is one falling within section 78(1) of the Act of 1975.[16]It has, however, to be borne in mind that this is an exceptional form of relief granted pending a determination of a complaint of unfair dismissal. There are certain limits upon the employee who seeks to invoke it. In the first place he must produce the certificate showing that the union official considers that there are reasonable grounds for supposing that the reason for his dismissal was the one which he alleges. He must also bring his complaint within seven days and the industrial tribunal are required, as the chairman himself considers and as is accepted by both sides, to decide the matter on the material before them without necessarily reaching to conclusion which will follow at the main hearing. It is possible that an application of this kind may require to be made on very little evidence although in the present case there was substantial evidence called by both sides.[17]Mr. White has drawn our attention to the fact that a situation could arise in which an employee, who succeeded at the interim hearing and failed at the main hearing, could receive his pay meanwhile yet there would be no obligation to reimburse his employer. He says that it is not at all necessary that at the main hearing, even if he wins, the employee will be reinstated and moreover he says that if the employee wins at the hearing there may fall to be made deductions from what he has received meanwhile. Accordingly he says that the employer is, but the employee is not, necessarily prejudiced by the operation of this section. Mr. Hands on the other side contends that the prejudice of the employer is nothing like as great as it would be to the employee. He says that the object of this legislation is that the employer has to continue paying money for reinstating the man if he does dismiss him for what are in substance reasons falling within section 78(1) .[18]Having considered all these matters which have been urged before us, we are unanimously of the view that the test proposed by Mr. Hands of a "reasonable prospect of success" is not one which should be adopted. The phrase can have different shades of emphasis, the lowest of which we do not think is sufficient. We do not consider that Parliament intended that an employee should be able to obtain an order under this section unless he achieved a higher degree of certainty in the mind of the industrial tribunal than that of showing that he just had a "reasonable" prospect of success. The employee begins with a certificate from the trade union official certifying that there appear to be reasonable grounds for supposing that the reason for his dismissal was the one alleged. We consider that the tribunal is required to be satisfied of more than that before it can appear "that it is likely" that a tribunal will find that a complainant was unfairly dismissed for one of the stated reasons.[19]On the other hand we are not persuaded that there is a dichotomy between "probable" and "likely" as expressed by the chairman of the industrial tribunal. We find it difficult to envisage something which is likely but improbable or probable but unlikely and we observe that the Shorter Oxford English Dictionary definition does define "likely" as "probable." Nor do we think that it is right in a case of this kind to ask whether the applicant has proved his case on a balance of probabilities in the sense that he has established a 51 per cent. probability of succeeding in his application, as has at one stage been contended before us. Nor do we find Mr. Hand's alternative suggestion of a teal possibility of success to be a satisfactory approach. This again can have different shades of emphasis. It seems to us that the section requires that the employee shall establish more clearly that he is likely to succeed than that phrase is capable of suggesting on one meaning. On the other hand it is clear that the tribunal does not have to be satisfied that the applicant will succeed at the trial. It may be undesirable to find a single synonym for the word "likely" but equally, we think 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.[20]We think that the right approach is expressed in a colloquial phrase suggested by Mr. White. The industrial tribunal should ask themselves whether the applicant has established that he has a "pretty good" chance of succeeding in the final application to the tribunal.[21]Although the chairman of the industrial tribunal expressed the burden of proof differently from the way which we have done we do not consider that there is any real difference of emphasis. He thought that "likely" meant more than "probable" and he regarded "probable" as being "51 per cent. or more." Accordingly we are not satisfied that he erred in law in his interpretation of the section.[22]Mr. Hands, however, contends that whatever the burden of proof, which is applicable here, the chairman has arrived at a conclusion which on the evidence before him and on his findings he was not entitled to arrive at, and one at which no reasonable tribunal could have arrived. He points to the history of the matter and to the fact that in the various paragraphs of his decision the chairman stresses the role played by the employee as a member of the union in negotiating with his company. He emphasises that the whole purpose of this meeting was that the employers and their employees should discuss the company participation scheme, the object of which was to avoid conferring upon the union the power to bargain on behalf of its members. This was not a meeting where the employers were discussing the flotation of some new project where it might be said that the interests of the trade union could not directly enter. Here everything that was being done was in the interests of the members of the trade union and in relation to the terms and conditions of their employment. He says the irresistible inference here is that the employee was dismissed because of the line which he had taken at the meeting, when he had obviously advocated robustly the attitude of the union. He stresses that the many matters relied upon by the employers are each in themselves trivial. Some of them go back a very long way and he says that none of them caused the employers to invoke their disciplinary procedure with one exception where the notice under the disciplinary procedure was subsequently withdrawn. Accordingly he contends that it is quite plain here that this is an excuse put up by the employers for the dismissal of the employee and that nothing which is said could possibly amount to gross misconduct. On the other hand Mr. White has urged upon us that there were at the meeting of October 19 considerable interruptions by the employee of the personnel manager. It is said that he had given incorrect information on the question of the appraisal of the employees's salaries and that he had, in giving away this information, broken a duty of confidence to the managing director. It is also said that he made other misleading statements and had failed to act with the responsibility of someone in his position. Moreover, a number of other matters are relied upon in the statement of reasons which it is said amount to misconduct and which had led to the employee's conduct being kept under review. Mr. White submits here that he was doing far more than acting as a member of the union and that the employers have shown that their real grounds for dismissing him were misconduct, but they were more than shadowy grounds - they were real grounds and not a sham and that the chairman of the industrial tribunal had before him material which fully justified his decision. Unfortunately, although we agree about everything so far in this decision, we are divided in our view as to the final outcome of the case. Two members of the appeal tribunal consider that although had the matter been before them afresh they might have come to a different conclusion from the chairman, there was material before him upon which he could reach the conclusion that he was not satisfied that he should make an order. They consider that he was entitled, having seen the witnesses, to come to the view that in all the circumstances the right course was that the matter should now proceeded to a hearing. The third member of the tribunal takes the opposite view and he is of the opinion that here no reasonable tribunal could have reached the conclusion which the chairman reached on the evidence before him when properly directing himself. He would accordingly make an interim order under section 78 .[23]We have deliberately refrained from expressing any views upon the merits of the case or from analysing in detail the reasons why we have severally reached our views as to what the ultimate outcome of the case ought to be in view of the fact that the matter will have to go to a final hearing in any event. We add that nothing we have said is intended in any way to affect determination of the case on the substantive hearing. In the circumstances we dismiss this appeal and the majority share the view of the chairman that the matter should now proceed to a full hearing.