Nairn & Anor v BHT (Scotland) Ltd [1992] UKEAT 358_90_2603

EAT
Nairn & Anor v BHT (Scotland) Ltd
[1992] UKEAT 358_90_2603 · 1992-03-26
MR JUSTICE KNOX : This is an Appeal by the two employees in the case, Mr Peter Nairn and Mr Carl Dagnall from a decision of the Industrial Tribunal sitting at Shrewsbury on 14 May 1990 which was sent to the parties on 23 May of that year. The Tribunal decided that neither Applicant was dismissed because of Trade Union activities. They both were employed by the Respondents both in the Industrial Tribunal and here, BHT (Scotland) Ltd -I will call that "the Company".They were employed for a quite short space of time. Their applications for employment contained the following relevant information. As far as Mr Nairn was concerned in answer to the question "Are you a Trade Union member?" he said "Yes". In answer to the question "Would you be prepared to work away from home?" he said "Yes". So far as Mr Dagnall was concerned his answer to the question "Are you a Trade Union member?" was "EEPTU" and his answer to the question "Would you be prepared to work away from home?" was also "Yes".There are two unions involved in the Appeal although the extent to which they may or may not have been involved in the matter is a major subject of dispute. One of course is the EEPTU. The other is the one which figures twice, and twice only, in the documentation before us, counting the Originating Applications as a single document. It is the Electrical & Plumbing Industries Union, which I will call the "EPIU" and the two places where it figures in the documentation before us are, first of all, the Originating Applications which are, so far as this is concerned in identical terms. Indeed in most respects they are in very closely similar if not identical terms. In both Originating Applications the name and address of the Applicant's representative was given as being a Mr Colin G Carr and his address was given as the Electrical & Plumbing Industries Union with a particular address in Liverpool. The other place in which there is a mention of the EPIU is in the note of who appeared before the Industrial Tribunal and it is not in dispute, but that both Mr Dagnall and Mr Nairn were represented by a Mr Sandbach who was a representative of the EPIU.We have the notes of the hearing before the Industrial Tribunal. They were criticised as being inaccurate and there is a good deal of infelicitous material in the nature of fairly obvious clerical errors. Two examples are, first, that there is a reference to Friday 5th and it is perfectly clear that what was meant was Friday 2nd because only six lines up there is Wednesday 31st January and the rest of the account of the events fits in with Friday 2nd. The other example is that the site involved was at Pwllheli and there were two erroneous references to Llanelli instead.One which is of much greater importance is when one comes to the cross-examination of Mr Dagnall where he is recorded in the notes as having said this:
"I signed the application form.
I have agreed to work away from home and I am a member of EEPTU".When this Appeal was opened before us it was submitted to us that that was a mistake and that it should have been the EPIU that was referred to there but that was not accepted by Mr Harper who appeared before us and below, while Mr McMullen, who appeared before us for the Company, did not appear below. In reply, Mr McMullen submitted that the explanation for the reference to Mr Dagnall being a member of the EEPTU was not that it was a clerical error or that he had not said that at all, but was that he was, for technical reasons which it is not necessary to go into, indeed a member of the EEPTU and that what Mr Dagnall was talking about was the fact, mentioned above, that Mr Dagnall had said just that in his application for employment.Subject to that aspect of the matter the notes contain no reference from beginning to end to the EPIU. Equally the decision of the Industrial Tribunal contains no mention of the EPIU. That was submitted to us to be a fundamental error by the Industrial Tribunal in failing to distinguish between the two unions.Before we return to deal with that aspect of the matter it will be convenient to state very shortly the factual background. This was that both Mr Nairn and Mr Dagnall, who were electricians, were present at a meeting of electricians employed by the Company on 31 January 1990 and Mr Nairn was there elected as a safety representative and Mr Dagnall was elected as a shop steward. That was reported to the site foreman, Mr Mossom, who gave evidence to the Industrial Tribunal, and he reported that fact to his superior manager, a Mr Orr, who was based in Glasgow. The Company, as the name indicates, is a Scottish company.Mr Orr is reported to have replied:"O.K. Fair enough".to that information.Very shortly after, that is to say on 2 February, a fax message came from Mr Orr to Mr Mossom and that was before the Industrial Tribunal and is in the bundle of documents before us and it reads:
"Excess Labour.
Main Contractor has confirmed hold-up in Electrical work due to scaffolding being behind programme.Desperate for labour at Bexleyheath, see Page 2.Please transfer the following labour to [and then there is an address given in Bexleyheath.

(A) CARL DAGNALL [One of the Appellants]

(b) BRIAN HERRON [Pausing there for a moment Mr Herron was in fact, there was some evidence, reported as elected as the Minutes Secretary in the meeting of 31 January. Secondly, going back to the facts to an address in Aberdeen]

(A) PETER NAIRN [The other Appellant]

(B) GERRY MCNAMEE

All to report to site 8 AM MONDAY 5/2/90

Tommy, please confirm you can spare more labour from site if required and how many."On the strength of that Mr Mossom gave Mr Dagnall and Mr Nairn their marching orders to Aberdeen and Bexleyheath, Dagnall to Bexleyheath, Nairn to Aberdeen and they were away the whole of the Sunday and were told that they could move on the Monday but they refused to go and the Industrial Tribunal found as a fact that they did not say anything to Mr Mossom at that stage about their transfers being because of their union activities but that they did mention personal reasons that they had for not wishing to move thus.They were dismissed for refusing to obey the orders on the Wednesday having come back to the site on Tuesday. In the meanwhile there was evidence given to the Industrial Tribunal which found its way into the decision concerning ringing up a full-time official. The Notes of Evidence read as follows on this. Mr Dagnall's evidence states:
"Tuesday 6 - I went to the full time official on that day. He phoned BHT. He was told we don't ask people to go we tell them to go.

We were then told to go to site and we were then dismissed."

That found its way into the Industrial Tribunal's decision in this way.
"When the Applicants were told that, `that is to say that if they did not go they would be dismissed', they went on Tuesday 6 February to speak to the EEPTU full time official who, we were informed, after speaking to BHT, told them to go back to the site."
The Notes of Evidence do not contain any reference to the union to which the full time official belonged. It seems to us that either the notes are right or they are wrong, both in that place and possibly in the other place where Mr Dagnall gave evidence about what union it was that he was a member of, but that is not certain, in not identifying the union that was being spoken of. If in fact the notes are claimed to be wrong and there was, it is said, a specific mention of the EPIU, then there was a perfectly clear procedure for the Appellants to follow in challenging the Chairman's notes. It obviously does cause a difficulty when a Chairman's notes are challenged for this Tribunal to know whether the challenge is a sound one or not. There is a well established procedure, the details of which need not be set out here, whereby an Appellant who wishes to challenge the accuracy of notes submits his version for the Chairman's comments and the other party, be it Respondent or Appellant, is then consulted and this Tribunal will act on an agreed version of evidence even if it conflicts with what the Chairman wrote down. If the parties agree that the Chairman said something which does not find its way into the notes, nevertheless this Tribunal will accept that.If on the other hand there is a difference of opinion between the parties as to what was said then of course this Tribunal has to follow what the Chairman has recorded. Now in this case that procedure was not followed at all and it simply is not possible for us to come to the conclusion that these notes are inaccurate notes.If one assumes that these notes are not inaccurate notes in that respect, it seems to us that there is no material upon which we can say that the difference which, as a matter of fact, we are quite content to accept is practically an extremely important one, between the two unions, the EPIU and the ETPU, was a matter which was ventilated before the Industrial Tribunal. We have to go on the evidence that is before us and we have searched through the notes and with the guidance of Counsel we have searched through the decision and neither of them mentions the second of the two unions the EPIU. That makes it impossible, in our view, for us to find that there really was such a fundamental error as is identified in argument by Mr McMullen. The situation would have been very different had we found that there was that fundamental error because we can imagine that one would then approach differently the validity of the decision of the Industrial Tribunal on the critical question, what was the reason for these two gentlemen to be transferred to Bexleyheath and Aberdeen? That the Industrial Tribunal dealt with in the second paragraph of its short decision. Having pointed out their transferability in their application forms and the fact that they had been told, as they had, that the job that they were on would last for three months, the Industrial Tribunal said this;
"Nevertheless, the matter of the scaffolding was, in our view, entirely unforeseen by the respondents. So far as the respondents are concerned we had no evidence that there was any anti-union bias in the company. There are no Shop Stewards but there is no objection to employees being members of a union. Indeed, the company now insist on membership of the EEPTU for all employees. It is true that the dismissals were made soon after Mr Orr's knowledge that the applicants were elected Shop Steward and the Safety Representative. However, Mr Orr was told about the scaffolding problem after he knew of the election of these two applicants and we think that their election was not the reason for the transfer; it was the scaffolding problem."
That, in our view, is an identification of the reason for the transfer, mainly the scaffolding problem and although we quite see that the Notes of Evidence show that there were "pros and cons" in the evidence about the genuiness of the scaffolding problem, that is essentially a matter of fact which the Industrial Tribunal has dealt with.It was submitted to us that that conclusion of fact was infected on two sides. One was the words preceding the finding namely "that there was no evidence that there was any anti-union bias". The other was by the words that follow it, which were references to two earlier cases Drew v. St Edmundsbury DC [1980] IRLR 459; and Dixon & Shaw v. West Ella Developments Ltd [1978] ICR 856, as authority for the proposition that a Shop Steward or a Safety Representative cannot claim to have been unfairly dismissed for taking part in the activities of a trade union unless he can show that he is an accredited official of that union.As regards to the first of those two objections, namely that there was no evidence of any anti-union bias in the Company, we were shown the passage in the Notes of Evidence which shows that the Industrial Tribunal indeed quoted from the evidence of Mr Andrew Robertson, the Project Engineer, who in cross-examination said:

"We now insist on membership of EETPU - only that union and no other."

and it was submitted to us that that was, under the present legislation, an unlawful attitude to adopt.That is not, in our view, a question to which we have to address ourselves. The question to which we have to address ourselves is whether the finding of fact, namely that the scaffolding problem was the reason for transfer, was infected by the view that was expressed by the Industrial Tribunal that there was not any anti-union bias in the Company. It also is affected by the view that we have been driven to, for the considerations set out earlier, that there is no record of there being aired before the Industrial Tribunal, the important differences that no doubt do exist between these two unions. We do not find, in that state of affairs, a sufficient ground for regarding the factual finding as being the subject of an error of law.Similarly, as regards the subsequent point that one has to establish accreditation, while we are satisfied, as a result of Mr McMullen's argument, that neither of the two cases cited is authority for the proposition, and it is not necessary to go through the particular reasons why not, nevertheless the fact that there was an erroneous view expressed about the necessity for accreditation does not detract from the identification of "the reason for the transfer". What it does leave us with is an Industrial Tribunal decision which has two reasons in it one of which is flawed, namely the lack of accreditation on the part of the two Appellants, and one of which is unchallengeable in this Tribunal. In those circumstances it would not be appropriate for us to reverse the decision unless we were satisfied that the erroneous reason, in some way, impacted on the valid one, and that bridge we simply cannot cross because it seems to us that it is an entirely separate problem, whether or not the scaffolding was a genuine reason for sending these two gentlemen to the opposite ends of the country, from the problem that is raised by the fact that they did not have trade union accreditation, if indeed they did not. There not being any reason for undermining the factual analysis which, in our view, is the complete answer to the Originating Applications in both cases, it follows that these Appeals must fail.