Moloney v Parkside Health Authority [1992] UKEAT 623_91_2011

EAT
Moloney v Parkside Health Authority
[1992] UKEAT 623_91_2011 · 1992-11-20
MR JUSTICE WOOD (PRESIDENT): An Industrial Tribunal sitting at London (North) under the Chairmanship of the learned Regional Chairman Mr McCarthy, heard an application by Mr Moloney on three days in the Summer of 1991 and dismissed it. He comes before us now on appeal. This is a preliminary hearing. In this list we look to see whether there is a point of law which is discernible and which merits argument with both parties here. On this occasion we have only heard Mr Moloney and, if we may say so, we would like to express our gratitude to him for the simple, succinct and, indeed, able way that he has made the point which he wants us to consider.His application was under Section 23(1) of the Employment Protection (Consolidation) Act 1978. This is a part of the Act which deals with trade union membership and activities. Section 23(1), so far as is relevant reads as follows:
"(1) . . . every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of - (a). . . (b)preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so ;"
A complaint was brought under Section 24 and the only other relevant statutory provision is Section 25(1)(a) which reads:
"(1) On a complaint under section 24 it shall be for the employer to show - (a)the purpose for which action was taken against the complainant;"
The essence of the complaint being made was that Mr Moloney, who was a Nurse, and employed by the Respondents, Parkside Health Authority, was not being fairly treated so far as his promotion was concerned, and the reason for this and the purpose behind it, was because he was a Shop Steward in COHSE.The history went back some way. There was a gradual deterioration in relationships between Mr Moloney and a Mrs Delaney. She herself had had experience in a trade union and she was in a position above Mr Moloney. The matters which fell within the time limit and which, therefore, were the basis upon which the Tribunal had to reach its decision, concerned a Mr Marley. Those matters started from April 1989. However, during 1988 there had been a number of other matters which were the subject of complaint although not strictly relevant for the decision of the Tribunal.The Tribunal, in paragraph 5 of its decision, deal first of all with that earlier, what has been called the pre-Marley, situation. The facts are carefully examined over some page and a half of the decision and at the end of that and summarising its views on that pre-Marley situation the Tribunal indicate that Mrs Delaney was perhaps somewhat prejudiced against Mr Moloney. The passage which is relevant, and to which Mr Moloney has drawn our attention, is in the latter half of paragraph 6 of the decision. The Tribunal say this:
"Doing the best we can on the balance of probabilities we conclude that while Mrs Delaney did not have a general anti-Union attitude - we think that is unlikely - she perhaps did not particularly like COHSE and found COHSE's active and persistent local representative, the Applicant, difficult to deal with and uncongenial, and probably had some bias against him linked to his Trade Union role. It is not possible to say that in any of the pre-Marley incidents there was the degree of intention to penalise or deter the Applicant that section 23(1) requires, but his Trade Union role and activities would probably not have helped him in his professional and career relations with Mrs Delaney; and having seen and heard both of them we think that their respective personalities and styles would make for difficulties of communication and co-operation.
It is clear, therefore, that although the Tribunal felt that the degree of prejudice was not such as to meet the requirements of Section 23(1) there was still, and I am using different words but I hope it reflects the view, a flavour of bias against Mr Moloney in his trade union role. That flavour of bias is the point which Mr Moloney makes to us, it is there set out.Having reached that conclusion on the pre-Marley situation, the Tribunal then examine, in some two pages, details of incidents which took place during April 1989, the Summer of 1989 and June, July, and indeed, up to September and through until the early part of 1990. The facts again, clearly set out, various people were promoted - Mr Moloney was not - somebody acted up, he did not.All those matters are clearly set out, they are facts. Then, in paragraph 8 the Tribunal reach their final conclusion, as it had to be, on the "Marley" matters, which were the only relevant matters. The Tribunal say this:
"8 We turn now to consider whether the Applicant has satisfied us as to his claim in respect of those matters which are within the time limit. So far as Mrs Delaney was the prime mover in the two acting up appointments of Mr Marley, which she probably was (though she discussed them with Mr Sims and Dr Green), we have borne in mind our conclusions set out above as to the pre-Marley matters and have, therefore, considered critically and carefully what she has said as to the reasons for the Marley appointments. We have, also, borne in mind the evidence of Mr Sims and Dr Green about those matters. The Applicant makes no allegations against them of bias against him because of his Trade Union activities. Their evidence was given before that of Mrs Delaney and she did not hear it. She only attended one the third day of the hearing. Her evidence on these matters was in line with theirs. In so far as the appointment of Mr Marley in July and September rather than the appointment of the Applicant to the acting up posts is to be regarded as action taken again the Applicant, the Respondents have satisfied us as to the purpose of those actions. They have satisfied section 25(1)(a).
9 There were good and sufficient reasons for the acting up of Marley on both occasions and the decisions were broadly in line with the criteria for acting up. Whatever grievance the Applicant may have felt about these matters - and on his own evidence it seems that an important basis for his complaint at the time was that he felt it to be `his turn' to act up, he has not satisfied us that the action taken against him by the appointment of Mr Marley to acting F Grade on James Ward in July 1989 which situation continued through to September, and the appointment of Marley in September to acting G Grade on James Ward, were actions taken for any of the purposes set out in section 23(1) of the 1978 Act"The real question is this, did the Tribunal take into account in their final conclusions the flavour of the earlier finding of bias in the pre-Marley situation?When one looks at paragraph 8 it seems to us quite clear that the Tribunal have taken that into account because they used the words "we have borne in mind our conclusions set out above as to the pre-Marley matters" and moreover, they not only bear them in mind but take them into account in the balance because they say "and have, therefore, considered critically and carefully what she has said as to the reasons for the Marley appointments." The position in law therefore, and we have explained to Mr Moloney that it is only if there is an error of law that we can interfere with a decision of an industrial tribunal. It is quite clear that the point he takes, namely, that having made the earlier finding they could not have reached the later finding because it is the same person involved, the Tribunal have specifically directed their minds to that matter, have taken into account and, indeed, have taken it into account in the balancing exercise, so that there is no omission in that and no error of law that we can see. It follows, therefore, that this appeal must be dismissed at this stage.