Rogers v Chloride Systems Ltd [1991] UKEAT 67_91_1610

EAT
Rogers v Chloride Systems Ltd
[1991] UKEAT 67_91_1610 · 1991-10-16
MR JUSTICE WOOD (PRESIDENT): Mrs Queenie Rogers was dismissed by her employers Chloride Systems Ltd (Chloride) on the 24th May 1990. By her Originating Application she claimed that she had been unfairly dismissed and further claimed a redundancy payment. She was one of 47 applicants.At a hearing before a tribunal on the 16th November 1990, 45 applicants withdrew applications based upon unfair dismissal. The cases of Mrs Sims and Mrs Rogers were heard. Mrs Sims failed, she does not appeal. Mrs Rogers also failed, she appeals.After considerable argument all applications for a redundancy payment were adjourned.It will therefore be seen that the issues involving the claim of Mrs Rogers was part of a much more extensive hearing. She herself did not give evidence, she was ill; we know not the reason, but the fact that she did not give evidence gives us cause for concern in the particular circumstances. Reliance was placed upon her written statement.The defence of Chloride was that at the time of her dismissal Mrs Rogers was taking part in a strike or other industrial action, thus she was precluded from claiming unfair dismissal by reason of Section 62 of the Employment Protection (Consolidation) Act 1978.Mrs Rogers started employment with Chloride in 1987. Her basic hours were 39 weekly. On Thursday, 29th March she left work feeling ill. She was suffering from a ruptured appendix and received two sick notes indicating that she might not be fit for work until the end of May.Earlier that year there had been some unrest at the factory. On the 4th May there was a ballot on strike action. On the 8th May there was a temporary "walk out". On the 9th May there was a strike and picket lines were set up. On the 11th May a letter was sent to all employees. On the 14th May there was a meeting at Transport House in Southampton, after which seven employees returned to work. On that same day a further letter was sent giving 9.30 am on Tuesday, 15th May as the deadline for returning to normal working. On that Tuesday a meeting was held at the factory gate in Southampton; eight more employees returned to work, the others remained on strike. On the 15th May letters of dismissal were despatched.As it had proved difficult to recruit alternative labour due to picket lines, the factory was closed by Chloride early in June with the consequential loss of numerous jobs. The operation was transferred to Peterborough.On the 14th May staff at the factory had been asked to check the identities of those not at work and the reasons for absence. Four were known to be away sick. Each was sent a letter of 15th May which included an undertaking. In brief the letter asked each of the four employees to sign the undertaking not later than 4 pm on Monday, 21st May. It goes on:
"If no undertaking has been received by the company by 4 pm on Monday 21 May 1990, the company has to conclude that from 14 May 1990 you continued to support the industrial action being taken at the company. This will leave the company with no alternative but to terminate your contract of employment."
The form of undertaking is phrased to confirm that the individual has abandoned participation in the industrial action on the 14th May but as from the start of work on the 15th May:
"I would have worked normally .... had I not been incapacitated from working by illness."
When Mrs Rogers received that letter with the draft undertaking, she spoke to Miss Sandle the District Officer of the Transport and General Workers' Union who advised against signing it as Mrs Rogers had lodged sick notes and had not taken part in the strike.Prior to this, on the 15th May, Mr Hawkes a Deputy Finance Director had spoken to Mrs Rogers on the telephone. Mr Murray, the Personnel Officer, having heard the report of this conversation from Mr Hawkes, preferred to await a reply to the letter and undertaking before deciding to dismiss.The decision of the Industrial Tribunal was by a majority, the learned Chairman and a Mr Hallam. They set out their reasons in paragraph 15:-
"Mr Hallam and I regrettably take a different view. It seems to us that Section 62 requires us to make a finding of fact as to whether Mrs Rogers was participating in a strike or other industrial action. Indeed, reading that Section it would appear that that be so even if the respondent was unaware. Whilst that may be unlikely in a practical sense, it indicates to us that the question has to be asked in isolation. The facts are not in dispute, there is the telephone conversation with Mr Hawkes and the failure to return the undertaking. If we are to make a finding of fact, as Mr Hallam and I see our duty, then we can of course take into account what is now known rather than what, in unfair dismissal terms, a reasonable employer would have known at the time.
On the evidence of Mrs Rogers herself we have to find that had she not been away ill, she would have participated in the strike. She clearly stated she would support her colleagues. She was asked to sign an undertaking that she had ceased to support the strike, she was told what conclusion would be drawn if she failed to reply. She took advice from her trade union officer who saw the document. It was not returned. We also now know that on 21 May Mrs Rogers applied for another job, she was interviewed and accepted the job the following day, the 22nd. She received her letter of dismissal on 24th.We have to conclude that she had no intention of resuming work at the respondents when she became fit (which was 25 May), she never took any step to disabuse her employer of what she knew its view would be. Mr Hallam and I therefore conclude that Mrs Rogers was participating in the strike, in that she was supporting it, or if that be wrong she certainly was participating in other industrial action. In our view Section 62 precludes her from claiming unfair dismissal."This paragraph has been the subject of criticism from Mr John Bowers for the appellants.In the first place he submits that there is a misdirection in the penultimate sentence in that the mere "supporting" of strike action is not enough to satisfy Section 62 and that there must be some "active" participation. Further, to suggest that Mrs Rogers was participating in "other industrial action" cannot be supported as that could only refer to a walk out of some few hours on the 8th May.Secondly, he submits that the approach of the majority erred in its reliance upon the failure to give the undertaking, the response to the `phone call and the inference to be drawn from Mrs Rogers seeking and finding fresh employment.Thirdly, he argues that even on the facts found there was insufficient factual foundation upon which the proper inference of "taking part in the strike" could be reached.This is a corner of the 1978 Act legislation which is fraught with difficulty as was emphasised by Browne-Wilkinson J in NAYLOR & ORS v. ORTON & SMITH LTD [1983] ICR 665 at p.673. It is common ground between the parties before us that the test is objective and that motive or intention is immaterial. As stressed by the learned Judge in NAYLOR , it must follow that two different tribunals could without error in law, take opposite views upon the same set of facts and that when in any doubt the tendency among employers must be towards dismissing in order to obtain the protection of the statutes. This is obviously to the benefit of neither party. Thus, we deem it helpful when possible, to give the views of the industrial members in differing factual situations where those situations may be thought likely to arise in the future.The following factual situations have already been met. First the employee does not attend work when able to do so and is not on holiday. Second, the employee participates in action subsidiary to the strike eg picketing. HINDLE GEARS v. McGINTY [1985] ICR 111; McCORMICK v. HORSEPOWER LTD [1981] ICR 535; BOLTON ROADWAYS LTD v. EDWARDS [1987] IRLR 392. Thirdly, the employee at the date of dismissal has not yet withdrawn his labour or participated in a picket, but he has made it clear to his employer that when next time he is due to work he will not attend and will take part in the strike or picket WINNETS v. SEAMARK BROTHERS LTD [1978] ICR 1240. Fourthly, where the employee participates in a strike or picketting for a short period and then goes sick and does not indicate to his employers that he no longer intends to participate in the industrial action WILLIAMS v. WESTERN MAIL & ECHO LTD [1980] ICR 366.As far as we and Counsel are aware, this is the first case before this Court in which the applicant has been on sick leave throughout the period of industrial dispute.The Industrial Members find themselves anxious about the conclusions of the majority in that paragraph 15. To take the points in reverse order - the fact that Mrs Rogers sought fresh employment on the 21st May is regarded by them as neutral. She might have taken the view that as the factory might close and some 50 other people would then be on the job market, it was wise to find other work at the earliest opportunity. Secondly, they feel that the document containing the undertaking should have been simpler and clearer and that to have signed it might have had some adverse affect upon the claims of Mrs Rogers to sickness benefit. This merits further enquiry. Thirdly, that the phrase "I would support my colleagues" is too vague a phrase upon which to base this finding of the majority. The details of the telephone conversation seem to them to be far too vague.They feel that there may be occasions when extremely large numbers are involved and where some of their suggestions could be thought to be outside the boundaries of reasonable practicability, but where only two or three sick employees are involved it seems to them that it would be reasonable for a local visit to be made and secondly, where questions are put in a letter they should be put separately and if possible with a "yes/no" answer. Whilst other questions can reasonably be included, it seems that the simple question which would help solve any doubts are:- (a)If you had not been sick, would you have returned to work normally on the 15th May 1990 as explained in the Company's letter of 14th May? - Yes/No (b)Are you prepared to undertake to return to work normally as soon as you are able so to do? - Yes/NoOne of the real problems is that in this difficult case Mrs Rogers did not give evidence.For myself, whilst appreciating the difficulties so often facing industrial tribunals, I also find it worrying that she did not do so and as I read the whole decision the case of Mrs Sims was also dealt with on the basis of her written statements (paragraph 5). I feel that the true importance to be given to the search for fresh employment and the failure to sign the undertaking can only be ascertained after evidence from Mrs Rogers herself. If the possible reasons put forward by the Industrial Members would prove to be correct then the facts would point to a very different conclusion. I am very conscious that the Industrial Tribunal saw some of the witnesses.However, bearing in mind the authorities in the Court of Appeal and the comments of Browne-Wilkinson J in NAYLOR , this Court is unable to remit this matter for a fresh hearing at which Mrs Rogers could give evidence without finding that the present decision was in some way flawed as containing an error of law.If on the facts found Mrs Rogers had merely "wished her workmates well", then without more that, although amounting to "support", would not amount to "taking part" in the strike or other industrial action. However, if Mrs Rogers had answered either of the questions posed above in the negative, that would have been sufficient to constitute "taking part" within the authorities, although it would not in ordinary parlance be an "active" participation. Thus, although we are not quite sure what meaning to give to "other industrial action" in the sentence criticised, we are not satisfied that there was a misdirection when reading that sentence as a whole.However, the conclusion of the majority depends upon detailed findings of fact. The description of the telephone conversation between Mr Hawkes and Mrs Rogers is to be found in paragraph 6(r) of the decision. That reads:
"We heard Mr Hawkes' version of the conversation and we have seen at A11 Mrs Rogers' version. There is little, if any, difference between them. We find as a fact that Mr Hawkes introduced himself (he was hitherto unknown to Mrs Rogers), asked if she had received the letter (referring to that of 15 May enclosing the undertaking signature). Mrs Rogers confirmed she had not. There was then a discussion about the industrial action. According to Mr Hawkes, Mrs Rogers knew something of it but not all, and so he explained the details. Mrs Rogers was aware that industrial action was being taken but not fully aware of the reason for it. That was another topic discussed between the two. According to Mr Hawkes, he then asked Mrs Rogers if she were not ill, would she support the strikers or attend work. Mrs Rogers replied that she would support the strikers. Mrs Rogers' version of that is:
"Do you support your workmates?", Answer: "
Of course.". Mrs Rogers then says that Mr Hawkes told her she would be dismissed. Mr Hawkes says that he did not say that, he had no authority to dismiss her and what he did say was that the dismissal might be a possible outcome. We prefer Mr Hawkes' version of that part of the conversation as Mrs Rogers did not appear, by later actions, to believe she had been dismissed."This appears to fall into three parts. The topics were the letter, the industrial action, and the issue of dismissal. Whilst there are clear findings on the first and third matters, the second remains undecided. Was it the version given by Mr Hawkes or that of Mrs Rogers which was accepted by the Tribunal? Before us it was common ground between the parties that the issue remained unsolved.It is not for us to find that fact nor is it for us to send back questions to an industrial tribunal. Without that essential finding it is impossible to decide whether the decision of the majority is well founded on fact.I have therefore agreed with the other members and decided that this appeal must be allowed and the matter remitted for a fresh hearing at which we hope Mrs Rogers will attend to give evidence and to be cross examined. The decision may or may not be the same, that is entirely a matter for that Tribunal.