CGB Publishing v Killey [1993] UKEAT 305_92_2201

EAT

CGB Publishing v Killey

[1993] UKEAT 305_92_2201 · 1993-01-22

JUDGE HICKS QC :

Mr Killey was employed for a comparatively short time - less than the two years which would be necessary to establish a jurisdiction for a claim for unfair dismissal by the Appellants, CGB Publishing - and it is one of the features of this case that, as Mr Reade frankly admitted (indeed in some sense it was part of the foundation of his argument) he was plainly unfairly dismissed. But the trouble is that that does not found any claim for relief in view of the short period of his employment and he therefore alleges, and successfully alleged before the Industrial Tribunal, that his dismissal was by reason of his membership of an independent trade union within the terms of section 58 of the Employment Protection (Consolidation) Act 1978, as it then was. It is a section which has since been repealed, but it applied at the date of this dismissal.

We need not go in detail into the events that surrounded the dismissal, in view of the conclusion which we have reached, because the first ground of appeal advanced by Mr Reade is that the Industrial Tribunal misdirected itself in applying the wrong test when it asked itself whether this was within the terms of the section the principal reason for Mr Killey's dismissal.

Their decision was a majority decision and paragraph 9 of the Reasons begins:

"The majority of the Tribunal find that if Mr Killey had not been a trade union member he would not have been dismissed."

and that has for convenience in argument been described as the "but for" test of the reason for dismissal. Then, after some intervening sentences to which I must return later, they end that paragraph by saying:

"The majority cannot separate the trade unionist from the man."

As to that latter phrase Mr Reade referred us to authorities, in particular CHANT v AQUABOATS LTD

[1978] IRLR 643

, which he says shows - and we accept - that that is a mistaken approach. Those cases concerned another limb of section 58, concerned with trade union activities rather than membership, but it seems to us the same principle applies. More importantly Mr Reade says that the "but for" test is wrong in principle, and we accept that also.

What has to be established is the reason or the principal reason for the dismissal. Miss Simler said that the reason is the set of beliefs held by the employer which causes him to dismiss, and for present purposes we are very happy to accept that definition or amplification of what the reason is for the purposes of this section. But it introduces two elements which in our view make the "but for" test inadequate.

First of all it introduces the state of mind of the employer - the beliefs held by the employer - and secondly it introduces the notion of causation. The "but for" test is in our view inadequate, first because it does not introduce at all any question as to the state of mind of the employer, and secondly because the notion of causation itself, which is a notion that has to be considered in very widely separated areas of the law, is inadequately approached by the "but for" principle, as is illustrated for instance in a quite different sphere by the discussion of the matter at page 314 of Smith & Hogan on Criminal Law . We are therefore satisfied that if the Tribunal applied that test then they were in error.

Before allowing the appeal on that ground, however, we have to ask ourselves whether they really did apply that test or whether, approaching their reasons as a whole and in a fair way, so as not to be unduly legalistic or to pay undue attention to particular words, they were really and in substance applying a correct test and not an incorrect one. Miss Simler relies on the central part of paragraph 9 - the part between the two sentences which I read a moment ago - in that regard. In that section the Tribunal says:

"The actions and manner and attitude of Mr Killey in the meeting of 18 March and on his approach to other matters were the outward and visible manifestation of his trade union membership. Both Mr Killey and Miss Capner each in their own way considered this manifestation as quintessentially that of a trade union member. It was this expression of trade unionism which Miss Capner found daunting; she had neither the experience, training nor capacity to respond positively to it."

If those sentences stood alone then we would not be entitled to upset the decision of the majority unless there was no evidence to found those findings or unless those findings were perverse, in the sense that no Industrial Tribunal properly directed could have reached them on the evidence.

Miss Simler has taken us through a number of passages of the evidence, and it may well be that if that finding stood alone it would be difficult to say that there was literally no evidence on which it could be supported. We do not want to express a conclusion on that matter, in view of the way in which we propose to dispose of this appeal. What does seem to us clear, however, is that those sentences do not stand alone; they are bracketed by the first and last sentences of paragraph 9, which in our view show the way in which the Tribunal was in fact approaching the matter - the question which the Tribunal was in fact asking itself - and render it unsafe to suppose that in the intervening sentences they were ridding their minds of the test which they themselves had expressed and reaching a conclusion on a more appropriate and accurate approach to the words of the statute. In our view, therefore, the decision of the Tribunal is vitiated by the misdirection of law under which they acted and the appeal must be allowed. For that reason we do not wish to go any further into details of the evidence which might have been relevant to the question which the Tribunal should have asked themselves because that is not a matter for us and we do not wish to prejudice any future consideration by an indication of our own views.

We allow the appeal. We are quite clear that it is not a case where we can substitute our own findings of fact, and the matter must therefore be remitted. We have considered the question whether it should be remitted to the same Tribunal or to a different one. Our provisional view is that it should be a different one but we are of course willing to receive any submissions about that, since we have not been addressed on the subject.

After further submissions the Employment Appeal Tribunal directed that the matter be remitted to the same Industrial Tribunal for further consideration on the issue as to what was the reason or principal reason for the dismissal in the light of the evidence already presented.