Simmette Ltd v Pedelty [1993] UKEAT 13

EAT
Simmette Ltd v Pedelty
[1993] UKEAT 13 · 1993-04-21
MR JUSTICE WOOD (PRESIDENT): We have before us two appeals arising from decisions of Industrial Tribunals sitting, with a different membership, at Exeter. This first is dated 3rd December 1990, that was an interim award under Section 77 of the 1978 Act, and the second is a decision of the 30th January 1991, which was the substantive hearing.The Applicant is Mrs Pedelty who was alleging that she had been unfairly dismissed by her employers Simmette Limited, on the grounds, broadly speaking, of trade union activity under Section 58.She succeeded on the interim award and her contract was continued, but when the substantive hearing took place in the early part of 1991 she failed.The Company appealed, initially, by a Notice of Appeal dated 28th December 1990, that is before the hearing of the substantive case, against the interim award, and the Applicant, Mrs Pedelty, subsequently appealed by a Notice of Appeal of the 11th March 1991 against her failure at the substantive hearing.We have full notes of the evidence before the Tribunals on each occasion and therefore have been able to examine the matter in rather more detail than might have been otherwise the case.The broad history of this matter is helpfully contained in a chronology prepared for us by Miss Booth on behalf of Mrs Pedelty. The Applicant who had been employed by this Company in 1989, had left with excellent references in June 1989. This is a small family Company involved in the cosmetics field; it is a specialist field, a trade which varies through the year, and is somewhat limited in the areas in which it can sell its products.On the 19th April 1990 Mrs Pedelty was re-engaged as a machinist on a basic wage of £110 per 40 hour week, there were three other machinists already employed. She worked on the night shift and it is common ground, and important, that the night shift was from 4 pm until midnight.In June 1990 Mrs Pedelty joined the Transport & General Workers' Union and herself started to organise Union membership of the staff at the Company. Indeed, she convened a staff meeting at the local school in that month. In the August she heard rumours that some of the Directors were earning high salaries and she approached a Mr White, the District Officer of the Transport & General Workers' Union, to see if he could confirm these matters and obtain information. She did not receive that information in detail until the 26th October 1990. Before she received that information, it was clear during the summer of 1990, that the orders received by the Company were dropping dramatically. It was clear that there was a redundancy situation in existence by, at least, the 18th October because in the week the 18th to the 24th there was in fact no production at the factory. However, the employees were not dismissed and were paid for doing no work whatsoever during that period. A student was made redundant but the others were not.On the 26th October Mrs Pedelty paid a lunch time visit to the factory and discussed the Directors' salaries with the staff who were there at that time. She then left and came back to the factory in time for her evening shift. One of the crucial matters in this case is at what time certain incidents occurred in the canteen, whether it was a few minutes before or a few minutes after 4 pm. The importance of that was in the provisions of Section 58 itself. To put it neutrally there was talk about the Directors' salaries in the canteen. A Mrs Anne Jerret, who was a Secretary in the Company, overheard what was being said; she thought that the information received had been taken from documents in her office and was convinced that they had been moved; she went to see the Managing Director, Mr Neil Simmons, a member of the three members of the family involved. He then called Mrs Pedelty into his office, she was accompanied by a Miss Woods, a conversation took place in the office and Mrs Pedelty was dismissed. The Company's case is that she was dismissed on the basis of redundancy. Her case was that it was a Section 58 dismissal. Those are the broad historical facts of this matter.The provisions of Section 58 are contained mainly in subsection (1):
". . . 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)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time."
and (c) is not material. Then subsection (2) defines "appropriate time" and the "appropriate time" means a time which either is outside his working or is a time within his working hours at which in accordance with arrangements agreed with, or consent given, by his employers is possible for him to take part in those activities, and "working hours" is contractual working hours.The burden of proof, because Mrs Pedelty had not been employed for two years, lies upon her, under the provision of Section 64(3). It was therefore for the Applicant to establish on the balance of probabilities a number of issues. The convenient place where those issues were set out, and was pointed out to us by Miss Booth, lies in the case of J Brennan & B Ging v. Ellward (Lancs) Ltd [1976] IRLR 378, in the last paragraph 7 of the Judgment there of this Tribunal, presided over by Mr

Justice Phillips, where the following questions are put:

"By way of guidance upon the rehearing of the complaints we would recommend that the Industrial Tribunal, amongst other things, should consider the following matters: (i)Were the appellants dismissed for the reason given by their employers? If yes, the complaints will fail. If no:
(ii) What were the acts, conduct or behaviour of the Appellant upon the basis of which they were dismissed by the employers?(iii)Did such matters taken together constitute the taking part by them in the activities of an independent trade union? If no, the complaints will fail. If yes:(iv)Did they occur in appropriate time? If no, the complaints will fail. If yes, they will succeed."Thus it was for Mrs Pedelty to prove here that the principal reason, if there was more than one reason, and ultimately the Tribunal did decide there were subsidiary reasons, was either membership or trade union activity. If she proved that, then was it activity at an appropriate time?Those issues remained the same whether the interim award was being considered or at the substantive hearing.Mr Spens, for the Company, criticises the decision to make an interim award and he does so on a number of grounds. Before it is possible to analyse his submissions it is important to see the way in which the Applicant herself, and the Trade Union on her behalf, were making their case. In the Originating Application the Applicant stated her case in the following form, it is quite short, and it is perhaps important to see how it was put:
"I was the main instigator in recruiting employees of Simmette Ltd., into the TGWU. Subsequently, I was approached by Mr Simmons who made it clear to me that he was not happy with what was going on (Union membership) because it had caused a split amongst the employees. On Friday 26th October 1990, in response to a previous request from the membership, I received information from the Union's Full Time Officer, Mr S K White, concerning the Company's latest Annual Returns which he had obtained from Companies House. I then went to Simmette Ltd., at lunch time and informed some of the members of the information contained in the Annual Company Report."
Pausing there, there is the lunch time visit to which we have already referred, and then she continues:
"shortly after I had reported for work at 4 pm on Friday 26th October `90, I was called into the Office by Mr N M Simmons, Managing Director. I stated that I wished to have Miss Maureen Woods, a fellow employee, present as a witness which Mr Simmons agreed to. When Miss Woods was present, Mr Simmons, who did not have a witness present, addressed me and during the conversation he said he was fed up with me being a stirrer, and that he believed that I must have gone into the Office At Simmette Ltd., and obtained the Company information from his files. I stated that on my child's life I had not obtained the information from the firm's Office. I informed him that I had received the information from the Union. Mr N M Simmons then told me I was dismissed and no longer required as an employee of Simmette Ltd and to leave the Company immediately. During this meeting, Mr Simmons also told Miss Maureen Woods that she was not to bring any paperwork into the firm which the Union had issued, and in particular, the Company Annual Report."
The time at which it is alleged that she was called into the office was shortly after she had reported for work at 4 pm, and there the conversation was set out.The provisions of Section 77 perhaps could be referred to as exceptional. This Court in the case of Taplin v. C Shippam Ltd [1978] ICR 1068 referred to these procedures. The Court was presided over on that occasion by Lord Slynn and in order to show the approach of the Tribunal to the issues in Section 77 they considered the detailed wording. The wording was of a different section but for our present purposes it is relevant because the wording of Section 77(5), after the various procedures had been dealt with, is as follows:
"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 [is by virtue of section 58 to be regarded as having been unfairly dismissed], the tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on an application under this section and in what circumstances it may exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint -"
So that the issue is whether it appears to an industrial tribunal that it is likely that on determining the complaint the tribunal will find that the complaint is proved.That wording was causing some problems. At page 1073 D-F Lord Slynn has to say this, and this was in a reserved judgment:
"It has, however, to be borne in mind that this is an exceptional term 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."
and then he deals with the timing and goes on:
"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."
and then on page 1074, and I am picking some passages just below A, the learned

Judge said:

"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 an industrial tribunal than that of showing that he just had a "reasonable" prospect of success."
and lower at E:"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.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."Another colloquialism might be "it looks like a winner". But that is the approach which an industrial tribunal must adopt in the present case.The case for the Applicant is further indicated by a letter of the 31st October from Mr White, the District Officer, who says:
"I have absolutely no doubt that Mrs Pedelty's dismissal was linked to Trade Union membership/activities . . ."
they are not defined and it is interesting that the word is "linked to".The Industrial Tribunal, therefore, had to look to see whether it was likely that Mrs Pedelty would establish her case; the issues, therefore, included trade union activities or membership and the appropriate time. It was not suggested that merely being a member was the basis, it was making use of the services of a trade union to obtain information could have been trade union membership, as was indicated in the recent case of Discount Tobacco & Confectionary Ltd v. Armitage [1990] IRLR 15. But that again was not the allegation. The allegation was that the activity was that she was disseminating the information. There is one line in the evidence indicating that in the canteen, at about 4 o'clock, Mrs Pedelty had told the others to stay on in the trade union, but save for that it is not suggested that she was persuading others to stay on, or recruiting or that she was acting as authorised by the trade union or as requested by the trade union. Her own evidence was that she was being dismissed because "spreading around the Directors' wages" and, indeed, that is the basis for two submissions made on her behalf by Mr White at the earlier hearing. It seems to us that the evidence was so slim that it would really be impossible for an industrial tribunal, who had properly addressed their minds to that issue, to have reached the conclusion that she was likely to succeed on the evidence she adduced at that time. Moreover, it is of interest, indeed we found it a little bit surprising at first blush, and where this was an exceptional form of procedure, that the decision was reached on a majority. There is no reason in law why it could not do so, but to find that it was likely, if not unanimous, is in our judgment, somewhat unusual.The second point however is this, that there was no evidence on the issue of time. It was essential that there should be because if that issued failed then the whole case failed. We have searched through the evidence, the findings and the approach, to see whether that issue was in the minds of the Tribunal. We do not think that it was and if it had been there was simply no evidence upon which they could have thought it likely that this occurred before 4 pm on that particular day. We do not feel it necessary to refer to the evidence. Moreover, in looking at the reason or the principal reason, the case being put by Mrs Pedelty was the dissemination of the information and not trade union activities within the definition in the cases to which we have been helpfully referred.It is our judgment, therefore, that the decision on the interim award must be considered to be flawed.We turn next to the substantive hearing itself. The issues were the same coupled with the real issue of the reason for the dismissal. The burden of proof is the same. We remind ourselves of two basic principles; the first is that we must not look at the judgment itself through a magnifying glass and dissect it in that way and also that the Tribunal had the enormous advantage of seeing and hearing the witnesses.The approach of this Company to trade union activity was clearly considered by the Tribunal to be important. It dealt with that matter in three places in its Reasons. First of all in paragraphs 10, 11 and 12 looking at the allegation which Mrs Pedelty had made, as will be remembered in her Originating Application, that Mr Simmons had reacted to the earlier meeting in the school. Paragraph 11 reads:
"According to him and the Production Manager, he took a rather neutral view of the Union. It was pointed out by the Production Manager, Mr McCarthy, that there could be advantages in negotiating with a professional rather than with a number of the female staff who could be resentful. It appears to us that initially there was some degree of lack of enthusiasm on his part, and we will return to that in a moment.
We do not accept that he levelled a specific complaint against her for causing a split, but there may have been some conversation about safety equipment which she interpreted as being an attack of her activities as a trade unionist."Then in paragraph 45 the Tribunal say this:
"The attitude of Mr Simmons with regard to Trade Union membership is, we find, somewhat unenthusiastic, but we cannot infer that he would go so far as dismissing someone for such membership or activities. When he discussed the matter with his Production Manager we conclude that he was initially reluctant to accept the Union, but then could see some advantage in having one person with whom to negotiate. He was not entirely convinced about this, but was prepared to consider it. We do not consider that he would have dismissed someone simply for being a member of the Union. Had it become a question of whether the Union should be recognised or not, he might have had doubts. We accept he was approaching the matter with an open mind, although with some misgivings."
That was their view of the important witness for the Respondents' Company and his attitude in the matter and the attitude of the Company.On the main issues the Tribunal made, in our judgment, clear findings. It was for Mrs Pedelty to satisfy the Tribunal on the issue of appropriate time and in paragraph 21 and paragraph 39 they deal with the issue of time. Paragraph 21 reads:
"At lunchtime Mrs Pedelty came in during her own time. She saw the staff on the day shift, and she referred to the Directors' salaries and pension fund. She returned again at about 4 o'clock when she was due to resume her shift. The staff came in at 4 o'clock ready to start work at 4.30 pm. The hours of the shift commenced at 4 o'clock, and so she would have arrived a little before 4 o'clock."
and then paragraph 39:
"On the evidence we have heard, it would be impossible for us to reach any fair conclusion as to whether the conversation in the canteen was before or after 4 pm. The reality is that no-one was thinking very much about the time; there are different estimates of the time. The exact time had no significance to any of the witnesses on that day. It was `about 4 pm'."
It follows from those findings, and indeed when one looks at all the Notes of Evidence, that it is impossible to be satisfied precisely when the conversation in the canteen took place and it seems to us that it cannot be said that the Tribunal should have been satisfied on the evidence, or were perverse in saying that we are not satisfied on the evidence as to the issue of "appropriate time". That finding itself would be fatal to the appeal by Mrs Pedelty, but it is right that we should look at the other matters which have been so ably argued before us.The issue of the principal reason, namely, was it redundancy or was is because of trade union activity is dealt with in paragraphs 40 to 43 and indeed, in paragraph 48 of the judgment. The Tribunal say this at paragraph 40:
"We have to look then at the reason for the dismissal. Was it really something to do with her Trade Union membership or Trade Union activities?
We find that the reason for the dismissal was primarily redundancy. That would have occurred in any event. There had just been a week of no production and Mrs Pedelty was the next person due for redundancy.For Section 58 to apply, the reason, or the principal reason if there is more than one reason, has to be a reason relating to Trade Union membership or activities. We do not find that to be the case.A significant contributory factor to her dismissal was her swearing and causing trouble in the canteen. Mr Simmons at the time also believed that she had been snooping. That certainly brought forward the redundancy - possibly by only a matter of days - but was not the principal reason for the dismissal."and then in paragraph 48 they emphasise that again:
"In conclusion, we find that the principal reason was redundancy. Her application under Section 58 fails.
The Order of the Interim hearing for continuation of her employment ceases today."That then is the clear finding.On membership and activities, again the Tribunal are clear, in paragraphs 46 and 47:
"The behaviour in the canteen did not in our judgment constitute Trade Union activities. Mrs Pedelty was publicly abusing Mr Simmons and his brother. That had been reported back to him. We do not consider that could be an element of Union membership or Union activities. It was her personal activity - she was not acting on behalf of the Union, even though she was trying to persuade Mr Burnett to return to the Union. It was her swearing which Mr Simmons took objection to.
Her activity in obtaining information from the Union could be viewed as part and parcel of her Union membership, but that was not why she was dismissed. Nor do we find that insofar as the conversation concerned recruiting, she was dismissed for that. The contributory factor was the abuse and swearing. Even had it been the primary reason, we do not consider it would have come within Section 58."Those are formidable findings by the Tribunal. We have looked at the evidence; there was substantial evidence about that depending upon who one believed, and it is impossible, in our judgment, to say that there was no evidence upon which they could reach those findings.Miss Booth criticises the decision from a slightly different angle. Her first submission was that it was the behaviour in the canteen which triggered the decision to dismiss and the reason was not redundancy. She submitted that bringing forward a redundancy, unless there was further evidence of a deteriorating position, would not found a finding that the reason was redundancy and therefore the reason was what brought it forward, namely, the behaviour in the canteen. We take the view that that was really a question of fact. The Tribunal, again, had the advantage of being able to assess the situation and found as a fact that the principal reason was redundancy. There is no misdirection of law, there is an abundance of evidence, and even if this was correct and the Tribunal was wrong, there still remain two further hurdles for Mrs Pedelty to surmount, namely, the establishment that what occurred fell within Section 58 and the issue on time with which we have already dealt.The question of the canteen, and the behaviour, and the conduct, is dealt with by Miss Booth in this way; she submits that the Tribunal erred in that it looked to the form of what occurred and this unattractive language and not to the substance of what occurred. She cited to us a number of cases: Brennan to which we have already referred; Lyon & Scherk v. St James Press Ltd [1976] IRLR 215; and the earlier case of Dixon & Another v. West Ella Developments Ltd [1978] ICR 856. Here again it was a question of fact for the Tribunal. They took the view, as we have already indicated, that this was not trade union activity and, if it is any comfort for them, the experienced lay members sitting with me are quite satisfied that the Tribunal was correct on the evidence which they read, in reaching that conclusion. They have no doubt that this was not trade union activity and that there is no error of law on that particular score.It follows therefore, that we are quite unable to accept the submissions of Miss Booth. The issue on the time is really fatal to the whole case, but in any event, we find no error whatsoever in the way in which this Tribunal approached the substantive hearing and her appeal against that must be dismissed.It follows therefore, that the first appeal on the interim award succeeds and the second appeal against the substantive hearing is dismissed.