Business Post Ltd v Ballard [1992] UKEAT 263_90_0809

EAT
Business Post Ltd v Ballard
[1992] UKEAT 263_90_0809 · 1992-09-08
MR JUSTICE WOOD (PRESIDENT) By an Originating Application dated 22nd November 1989 Mr Ballard complained that he had been unfairly dismissed by his employers, Business Post Ltd, because of his Trade Union membership. He applied for interim relief. He further alleged that there had been no prior consultation, that the circumstances were wholly unfair and that he was dismissed because of his Trade Union membership. In the Notice of Appearance the employers denied this and stated that the reason for dismissal was redundancy. An application for interim relief in which he was supported by his Trade Union, the Transport and General Workers' Union ( T & G) was heard and dismissed on the basis that the Tribunal at that stage were unable to say that they were satisfied that the application was likely to succeed.The main hearing took place on 15th and 16th March 1990 before an Industrial Tribunal sitting at Birmingham who found in favour of the Applicant. The hearing as to remedy was adjourned and subsequently the Applicant, was awarded £7,120 compensation. His case on liability was that his dismissal was automatically unfair under the provisions of S.58 of the Employment Protection (Consolidation) Act 1978.The Respondent company is engaged in the trade of courier parcel delivery. Mr Ballard was first employed by the Company on 1st August 1989 and dismissed on 14th November of the same year. He was recruited as assistant night hub manager. He worked under a Mr Michael Dwyer. His work in that managerial capacity proved to be unsatisfactory and in October he was demoted to a driver/warehouseman. He was the most recently engaged employee in that capacity. It was Mr Dwyer who decided that he should not be dismissed but that he should be demoted and found a different job. This was the position which he held at the time of his dismissal.Mr Ballard considered joining the T & G. He obtained a small number of application forms which he kept ready for distribution to anyone who was interested and he told the Tribunal that his wish to join the T & G became known amongst other employees who were not members of a trade union.On 25th October he was in a Portacabin with other drivers during a break. A general discussion was taking place over coffee. Mr Dwyer came in and made a comment to him about union membership using the words "Les none of these want to join your f.... union". Mr Dwyer then left and the Applicant went outside to ask him about what he had said. Mr Ballard told the Tribunal that Mr Dwyer indicated that the general manager and the regional hub manager knew about his union involvement and Mr Dwyer repeated what he had said inside the Portacabin. Upon being asked further about the matter, Mr Dwyer had replied, "If I were you I would start looking for another job". There the conversation ended. Later that evening Mr Dwyer said to Mr Ballard, "Have you got a job yet?"The following day - 26th October - Mr Ballard was asked by Mr Alan Short, the day operations manager, to go to an office. He was told that it was in his interests so to do. Mr Short told him that there had been a report in a memorandum from Mr Dwyer. The note which was read out to Mr Ballard, but a copy of which he obtained later in circumstances over which he was criticised, read as follows -

"Jon (Mr Planas)

Les Ballard last night was secretly talking to the trunk drivers giving them forms to join the union and told them to keep it quiet. Unfortunately for him Bert the D, driver has blown the whistle. Chris at Reading is hopping mad. You will have to immediately dismiss les when he comes in. The crafty communist is trying to close us down.

Mick D"

The following day, 27th October, Mr Ballard told Mr Short what had occurred within the Portacabin although not mentioning that he was told to look for another job. Mr Short's reply was to tell him not to worry about it.On 9th November Mr Dwyer said to Mr Ballard, "Are you still in the union?" but there was no reply.Mr Ballard's application form to join the T & G Union was dated 30th October 1989.It was not until 14th November 1989 that Mr Ballard was dismissed.The case for the Company was that the managing director had decided that due to over-manning 3 or 4 people had to go from amongst drivers/warehousemen. Mr Dewick had had a meeting with Mr Planas and Mr Dwyer and had looked at the criteria of last in and first out but had decided to look for other criteria as well. They dismissed a Mr Turner because he did not "hit it off" with Mr Stevens who succeeded Mr Ballard as the assistant night hub manager; they dismissed Mr Neilson because his attendance record was abysmal; and so far as the Applicant was concerned he was dismissed on the basis of LIFO.Those then were the basic facts.

Section 58(1) in its relevant parts reads as follows -

"The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee - (a) was or proposed to become, a member of an independent trade union, or (b) ... (c) ..."

Towards the end of paragraph 31 of the Decision the Tribunal say this -

"We find the applicant was dismissed because he proposed to become a member of an independent trade union. Under the provisions of S.58 that is automatically unfair. We find the applicant was unfairly dismissed and his application succeeds."
It is to be noted that the Tribunal relied upon the words "proposed to become a member of an independent trade union" rather than "was". This may be important as there is no finding of fact that the management were aware that he had become a member.Mr Cooke attacks the Decision in two ways; we propose to deal with them in reverse order from the way he presented them to us. He was entitled to say, as he did, that the decision which, stretched over some 12 pages, was not entirely easy to understand.The first submission was that the finding in the light of the evidence was so bizarre as to be able properly to be characterised as "perverse". He submits that the decision to dismiss was made at meetings which were not attended by Mr Ballard and therefore there is no substantive evidence from which the inference could be drawn that the reason was his proposed membership of a trade union. It followed from this that the only hard evidence was the note to which we already referred and the evidence of the Applicant himself. He submits and we would respectfully agree, that the note by itself, although provoking inquiry, might not be sufficient in the light of the time factors and therefore one needs to look at the note together with the evidence of Mr Ballard.Mr Cook makes a number of weighty criticisms of that evidence. He points in the first place to the earlier incident in connection with his demotion and emphasises out that in his evidence in chief Mr Ballard stated that the reason for his demotion was to save £12,000 and that he had suffered a loss in wages of some £70 to £80 per week whereas in cross-examination he admitted both those statements to be untrue. Secondly, he points to the illicit copying of the note, but we attach no weight to this as in these circumstances one must expect this type of behaviour if feelings run high. He then points out that Mr Ballard referred to carrying out his trade union activities during working time which would not be an appropriate time for the purposes of S.58(1)(b). We agree with this and the only way in which the Tribunal could find a breach of S.58 was through the use of the word "proposed". Thirdly, Mr Cook points out that Mr Ballard called two witnesses who were fellow workmen. Each of them undermined the case being put forward by Mr Ballard.For the Company there were four witnesses, Mr Dwyer, Mr Short, Mr Planas and Mr Dewick.It followed therefore, submits Mr Cook - and we must agree with him - that the Tribunal disbelieved six witnesses and despite the unsatisfactory evidence of Mr Ballard accepted him in preference.That may be so and indeed this could well be one of the cases in which this Tribunal might have formed a different view, but this matter was essentially one of fact and we are quite unable to say that there was not evidence which, if believed, could have found the finding to which the Tribunal came. It follows therefore that we are unable to agree with this first submission. Despite the volume of evidence, this Tribunal found a narrow route which on the facts found, they were perfectly entitled to take.Secondly, Mr Cook submits that in fact the Decision of this Tribunal was under S.59 and not S.58 of the 1978 Act. Section 59 reads thus -

"59 Dismissal on ground of redundancy

Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and either -(a)that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was one of those specified in section 58(1); or (b)...

then, for the purposes of this Part, the dismissal shall be regarded as unfair."

His submission then proceeds thus, that since the Tribunal found that there was a redundancy and since the Tribunal found that Mr Ballard was selected in breach of S.58(1) the provisions of S.64(3) apply and Mr Ballard does not have a qualifying period of employment in order to bring proceedings.Section 64 in dealing with a qualifying period in subsection (1) requires a continuous period of not less than two years ending with the effective date of termination and subsection (3) reads -
"64(3) Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 58(1)."
Mr Cook points out that there is no specific reference to S.59(a) and that in its absence there is no jurisdiction in the Tribunal to hear this application. He emphasises out that in S.72A -- Reduction of compensation: matters to be disregarded, subsection (1) reads -
"(1) This section applies in any case where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) and the dismissal is to be regarded as unfair by virtue of section 58 or 59(a)."
Thus argues Mr Cook S.58 and S.59(a) are treated as different bases for a finding of automatic unfairness and it is only a finding under S.58 where the qualification of two years is not required.This is a difficult point and our task would have been made much easier if S.59(a) had been included in S.64(3). Early opportunity could usefully be taken by Parliament to clarify this issue.However, we have reached the conclusion that the decision of this Industrial Tribunal was not made under S.59 but under S.58.Mr Cook first referred us to paragraph 28 of the Decision which starts as follows -
"Mr Cook has submitted the tribunal has to decide whether dismissal was for redundancy or trade union membership or activities. We do not accept the matter has to be approached in that way. Unless the applicant is able to satisfy us that dismissal was contrary to S.58 the claim must fail whether or not he was dismissed for redundancy, since he has no qualifying service to challenge his dismissal for that or any other reason. ..."
Pausing there, it seems that the Industrial Tribunal was minded to accept Mr Cook's submission based on S.59, S.63 and S.72A.

The Tribunal then continue -

"Again we have to say we would be unable to determine the question of redundancy, if that was in issue, since no evidence has been adduced, only a directive from the managing director, that the workforce was to be reduced on the basis of over-manning. That was what Mr Planas was told but that is not evidence that such a situation existed. The question of a redundancy situation therefore does not fall to be determined by us as a separate issue. We are entitled to look beyond that situation and say whether or not the applicant has been able to establish his selection, and therefore his dismissal which followed from his selection, was based on trade union membership."
In that passage the Industrial Tribunal indicate that it is not intending to decide the question of redundancy, although on many occasions a Tribunal has considered itself to rely upon secondary evidence.

Mr Cook then directs our attention to paragraph 30 which reads -

"In selecting those to be dismissed for redundancy the respondents have pointed to the criteria used which differed in each case. Redundancy we find gave them the opportunity to dismiss three unsatisfactory employees. One whose attendance record was undesirable; another who could not get on with his manager and a third, the applicant, who according to Mr Dwyer's note might be troublesome because of actual or intended involvement with a union. ..."
There is however a third passage to which we would draw attention which is in paragraph 31 and a part of which we have already cited. It reads -
"... Whilst there was no immediate dismissal of the applicant following the note, we find the opportunity was taken, when it came to reducing the workforce, to choose the applicant because of his union membership. That afforded the opportunity to dismiss him. We find the applicant was unfairly dismissed because he proposed to become a member of an independent trade union. Under the provisions of S.58 that is automatically unfair. We find the applicant was unfairly dismissed and his application succeeds."
At the start of our consideration of the issues we indicated that we had some difficulty in analysing in this Decision. It was a difficult and complicated matter but we are quite satisfied in the final analysis that the basis of the decision by this Industrial Tribunal was that Mr Ballard was dismissed because of his proposed membership of a trade union and that was a dismissal which was automatically unfair under S.58. The background of redundancy was merely a smoke-screen "and it was rejected as the genuine reason for dismissal." It was not as the Tribunal found a redundancy in which there was an unfair selection under S.59(a), but it was a dismissal for which the suggested redundancy was used as an excuse and it is on that basis that the Company was held to be liable.There may be many cases where perfectly fair selection has taken place although an employee is a member of a Trade Union or is involved in trade union activities. These cases would not fall within S.59. These are essentially issues for an Industrial Tribunal.The appeal must be dismissed.