Lewis v E Mason & Sons [1993] UKEAT 481_91_2007

EAT

Lewis v E Mason & Sons

[1993] UKEAT 481_91_2007 · 1993-07-20

MR JUSTICE TUCKEY : Following a hearing on 2nd and 3rd July 1991 an Industrial Tribunal in Cardiff hearing four complaints of unfair dismissal, found in two of those cases that they had no jurisdiction because the Applicants did not have the qualifying period of service with the Respondent Company and in the other two cases that they had no jurisdiction having regard to the provisions of section 62 of the Employment Protection (Consolidation) Act 1978 because when they were dismissed the complainants were taking part in other industrial action. The latter two complainants, Mr Britton and Mr Lewis, appeal to this Tribunal against that decision.

The facts found by the Tribunal are as follows.

The four complainants were drivers employed by the Respondents, E Mason & Sons, an old established removal and storage firm. On 14 December 1990 Mr Mason, who was a principal of the Respondent firm, informed Mr Britton, that he was to make a trip to Edinburgh on the following Tuesday, 18 December. The day before, that is to say on the Monday, Mr Britton approached Mr Mason in the morning and asked which vehicle he was expected to take on this trip. He was told which of the Respondents' vehicles it would be and he replied "I am not taking that old vehicle out there". His reason for that was that it did not have an overnight heater. It was December. He was to go to Scotland and it was going to be very cold. Mr Mason told Mr Britton to think about what he was saying and its implications and met him again at the end of that day in the Respondents' yard. Mr Mason asked him if he had changed his mind about taking that particular vehicle to which Mr Britton said that he would take it provided he was paid an extra £5 to enable him to get bed and breakfast accommodation so that he would not have to sleep in the cab of the lorry. Mr Mason refused to do that and so he refused to go, whereupon Mr Mason told him that he was sacked.

Following Mr Britton's dismissal in that way another driver was asked to make the trip to Scotland. He said he would go on certain conditions which were not acceptable to Mr Mason and he also was sacked. So two of the drivers had been dismissed. They, accompanied by the other two complainants and other casual staff employed by the Respondents were driven home by Mr Lewis in a van. On the journey they all agreed that Mr Lewis should stop the van so that he could telephone Mr Mason and intercede on behalf of the two drivers who had been dismissed and that is what happened. There was a dispute about what was said in the course of the telephone conversation between Mr Lewis and Mr Mason. At some point there was some further discussion about the additional £5 which Mr Britton had mentioned as the price of his taking the vehicle to Scotland, but at the end of the conversation Mr Mason asserted that the situation had not changed from what it had been when the men had left the yard earlier in the evening and, as the Tribunal found, Mr Lewis then said (as had been agreed by all those in the van) that if he did not reinstate the two dismissed drivers, nobody would come into work the following morning. Mr Mason replied that he was not prepared to be held to ransom and told Mr Lewis that he and the others were also dismissed.

Those are the facts and so far as Mr Lewis and Mr Britton are concerned, the question for the Tribunal was whether they had jurisdiction having regard to section 62. Section 62 of the Act provides:

"an Industrial Tribunal shall not determine whether a dismissal is fair or unfair if at the date of dismissal the complainant was taking part in ... other industrial action."

They dealt first with the case of Mr Lewis. On his behalf it was contended that he was not taking part in any industrial action because there had not been any industrial action by the time he was dismissed on the Monday evening. There would be industrial action the following day if and when the men failed to attend for work.

Having recorded that argument the Tribunal went on to say that it was not sound. They refer to a passage in Harvey at paragraph 1328 which they quote which reads as follows:

"Obviously an employee is not participating in a strike simply by indicating that he will strike at some date in the future. But he is participating once he indicates that he will refuse to work when called upon to do so even if he is not then required actually to work."

They relied on the case of Winnett v Seamarks Brothers Ltd

[1978] ICR 1240

and concluded:

"It seems to us that Mr Lewis was indicating on behalf of himself and his colleagues that as long as the dismissal stood they intended to withhold their labour as from the following day, Tuesday 18 December. We think that thereafter they were taking part in strike action or other industrial action. They were collectively withholding their labour in order to put pressure on the employer to change the decision which he had taken with regard to two of their colleagues."

So far as Mr Lewis is concerned Counsel on his behalf complains that the Tribunal misdirected themselves because they should not have relied on Winnett but on another EAT decision, Midland Plastics v Till & Others

[1983] IRLR 9

. We will come back to that in a moment.

The Tribunal went on to deal with the case of Mr Britton noting that by the time the call had been made by Mr Lewis to Mr Mason, he had already been dismissed. They then addressed the question as to whether it was sufficient for Mr Mason honestly and reasonably to believe that Mr Britton was taking part in industrial action or whether it was for the Tribunal to decide in all the circumstances, whether he was so acting. They concluded that it was the latter and went on to say:

"Moreover, it is not entirely clear whether one individual by his actions can "trigger" the section; or whether it applies only to collective action."

They point out that the words of section 62 are not limited to the definition contained in paragraph 24 of Schedule 13 and continue:

"It seems however that there must be conduct designed to coerce the employer to improve the existing terms and conditions in some way. Having reviewed the evidence we are satisfied that on the evening of 17 December while in the yard, Mr Britton made it clear to Mr Mason that he would only go to Scotland if he was paid £15 overnight allowance...

After some deliberation, we have concluded that by his actions Mr Britton was involved in industrial action because he was refusing to carry out an instruction, which under the contract of employment the employer was entitled to give, and which he would have been prepared to do for an extra payment."

Mr Britton, who has appeared before us in person, challenges that conclusion on the basis that he was not involved in taking part in industrial action because he could not do so alone.

The starting point for consideration of both appeals must be to define what it is that this Tribunal has to consider in an appeal of this kind. As a lawyer one might say, and indeed it was submitted to us, that the question of whether someone was taking part in "other industrial action" was a mixed question of law and fact but that is not what the Court of Appeal have said, albeit that this has been the subject of some criticism. We are bound to apply the law as laid down by the Court of Appeal who have made it perfectly clear that the question of whether an employee is participating in "other industrial action" is the sort of question which an industrial jury is best fitted to decide and is accordingly a question of fact and fact alone. That is the effect of the decision in Coates & Venables v Modern Methods & Materials

[1982] IRLR 318

and a number of other cases where this part of the legislation has been considered.

Accordingly, it is only open to us to interfere with the findings of an Industrial Tribunal if it can be shown that their findings were perverse, or to put it in another way, findings which no Industrial Tribunal properly directing themselves could reasonably have reached.

Miss Smith who appeared on behalf of Mr Lewis recognised that difficulty but contended that by failing to refer to the second of the two cases the Tribunal erred in their approach. On analysis however, the only question for us must be - is this a permissible conclusion on the facts as found? The mere fact that the Tribunal omit to refer to one of a number of authorities which arguably touch on the point, does not, it seems to us, advance the question one way or another.

However lest it should be thought that is too superficial an approach to the question we have considered Winnett and Midland Plastics. In Winnett the complainant was a shop steward, one of five coach drivers who attended a meeting which resulted in one being dismissed and the complainant being asked if he was going to work the following day. He stated that he was not and that he and others were going to form a picket. He was then dismissed together with two other drivers who refused to work.

(D) :

"We do not consider that Mr Hillier [Counsel] is correct when he submits that the only person who can take part "in strike action or other industrial action" is one who withholds his labour when he is contractually due to work. If, for example, in a particular case all the employees of a company which is engaged on a three-shift system of work meet and decide that as from the time of their meeting they will all stop work, we do not consider that the only ones who are taking part in strike action or other industrial action are those whose shift is due to work at the moment of the decision. It seems to us that those employees who are due to work on the next two following shifts are taking part in strike action or other industrial action when they intimate that their labour will be withdrawn at a time when the current shift actually stops work. They do not only begin to take part in strike action or other industrial action when the time of their shift comes and they do not actually work."

He was considering an appeal from an Industrial Tribunal which had concluded that the employee was taking part in industrial action at the time he was dismissed. He concludes his Judgment by saying:

"But in the end this is a question of fact for the tribunal, and we do not consider that in the particular circumstances of this case it can be said that they came to a conclusion which was perverse."

That is to be borne in mind also when one considers Midland Plastics where again the EAT dismissed an appeal from an Industrial Tribunal who had decided the other way on the facts of that particular case. In that case, in the course of wages negotiations, a works committee sent a letter to the employers setting out demands and concluding:

"If these demands are not met in full it is our intention to take industrial action as from [a certain time and date]".

A number of employees were then dismissed before this deadline. The facts found by the Tribunal included the finding (and we read from pages 10 and 11 of the report to which we have referred) that there was no industrial action at the time the employees were dismissed. At that stage there was no walk-out, go slow or work to rule, no banning of overtime and no picketing; no decision had been made as to the nature of the industrial action which was threatened, if any; the threat in the letter was ambiguous and no more than an indication that unless the employers acted properly and responsibly in wage negotiation certain action might be taken in the future.

In the course of his Judgment Mr Justice Browne-Wilkinson decided that the Tribunal had correctly distinguished the present case from Winnett, that on the facts of that case there was no industrial action in progress at the time of the dismissal and accordingly the decision could be upheld.

We have pored over the detail of these two cases and considered persuasive arguments on both sides that the one case is more appropriate to the facts of this case than the other but we start where we began which is to say that at the end of the day each case depends upon its own facts. The only question in Mr Lewis's case is whether it was open to the Tribunal to conclude as they did, that there was industrial action at the time of his dismissal and he was taking part in it. Here a definite threat was made at a time when further negotiation could not have been expected to take place, where the work for the following day had already been allocated by the employer. Before the dismissal the employer felt that the situation had not changed and there was therefore no realistic prospect of further negotiation. Mr Lewis and the others would not therefore come in to work the following morning. The Tribunal concluded that by this time Mr Lewis was taking part in industrial action. We are unable to say that this conclusion was perverse. This therefore disposes of Mr Lewis' appeal.

So far as Mr Britton is concerned the Industrial Tribunal again had a question of fact to decide. They refer to the context in which Mr Britton was dismissed, that is to say his insistence that he would only drive if he was given the extra £5 and that in order to constitute industrial action there must be conduct designed to coerce the employer to improve the terms and conditions of employment. Such an approach it seems to us is a perfectly logical and correct approach to the question that they had to answer. As to whether one person may be able to be involved in industrial action on his own we think that he may and so this was a conclusion which was open to the Tribunal on the facts. There are other ways in which they might have reached the same conclusion. The dismissal of Mr Britton could have been looked at in the context of what happened during the whole of that evening, which of course involved not just him but others, and on that basis the Tribunal could have concluded that this was collective action and not merely action by Mr Britton alone. They did not however take that course. We think the course they did take was open to them and so their decision in Mr Britton's case was also not perverse. Accordingly his appeal is also dismissed.