Rover Group Ltd v Hall [1994] UKEAT 20_93_0112

EAT
Rover Group Ltd v Hall
[1994] UKEAT 20_93_0112 · 1994-12-01
MR JUSTICE HOLLAND : By a form of Application dated 26 November 1991, the Applicant claimed compensation for unfair dismissal from his employment with the Respondent. That employment had started on 8 January 1958 and had ended on 18 October 1991 with his admitted dismissal.After a three day hearing, the Industrial Tribunal sitting at Reading, unanimously decided that he had been unfairly dismissed. Their reasons for that decision, was set out robustly in Full Reasons dated 18 November 1992.From those Reasons, it is apparent that they arrived at their decision on three grounds each referable to a different section in the Employment Protection (Consolidation) Act 1978 as it then was. The first ground relied upon by the Tribunal, related to the then Section 58 of the Act, now Section 152 Trade Union and Labour Relations (Consolidation) Act 1992. That Section concerns dismissal on grounds related to union membership.As to the material provisions of Section 58, as they then were, they read:

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..."

Subsection (2)

"In subsection (1)(b) "an appropriate time" means- (a) a time outside the employee's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union..."
Thus, the first ground for the decision was a finding by the Industrial Tribunal that the reason for the dismissal had been the Trade Union membership and activities of the applicant.The second ground relied upon was based upon Section 59 as it then was, of the 1978 Act which Section is now to be found in Section 153 of the 1992 Act. That Section reads so far as material, as follows:
"Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown- (a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and (b) that the reason (or, if more than one, the principal reason) why he was selected for dismissal was one of those specified in section 152(1),

the dismissal shall be regarded as unfair..."

Here again, this Tribunal found that the reason that he was selected for dismissal for redundancy was his union membership.The third finding arrived at by the Tribunal, was an alternative finding, based upon the premise that the Respondent were correct in their contentions that there had been no dismissal pursuant to these two Sections, that is, pursuant to Sections 58 and 59. Dealing with this alternative case, the Tribunal applied itself to the familiar provision of Section 57 and in the event decided that the dismissal was unfair, having regard to the provisions of Section 57(3), that is, having regard to the balance of factors that that subsection requires an employer to undertake before giving effect to a dismissal.We turn then to this Appeal. There is no Appeal now against that latter finding, that is, against the finding based upon Section 57(3). There is, however an Appeal based upon the findings pursuant to the other two Sections. This Appeal was initially founded on a Notice which was of the "everything including the kitchen sink" variety which had been drafted with little regard to the very limited jurisdiction of this Tribunal, that is, a jurisdiction limited by Section 136 of the 1978 Act to questions of Law. However, with the matter now staunchly presented by Miss Simber, effectively this Tribunal has been concerned with two points. The first point may be formulated as follows: it is a submission by Miss Simber that the Industrial Tribunal failed to direct itself that a finding of dismissal pursuant to Section 58 could only be based upon a finding as to the reason, or if more than one, the principal reason, that is a finding as to what so operated upon the Respondent's corporate mind as to result in a dismissal. For the purposes of that submission, she has drawn our attention to CGB Publishing v. Killey [1993] IRLR, pp 520 and to the headnote. Being a decision of the Employment Appeal, that Tribunal held:
"... The Industrial Tribunal had misdirected itself in concluding that the appellant had been dismissed by reason of his trade union membership. The Tribunal had applied the wrong test in finding that that was the principal reason for dismissal on the basis that if the appellant had not been a trade union member, he would not have been dismissed
The reason for dismissal is the set of beliefs held by the employer which causes him to dismiss. A "but for" test is wrong in principle because it does not introduce any question as to the state of mind of the employer and because it does not adequately approach the notion of causation.In the present case, therefore, the Tribunal's decision was vitiated by its misdirection in law. The appeal would be allowed and the case remitted to a differently constituted Industrial Tribunal."Miss Simber submits that on a proper analysis, we should conclude that this Industrial Tribunal applied the " but for " test and did not apply its mind as it should have done to discerning what was the reason or the principal reason for the dismissal, that is, what it was that operated upon the corporate mind of the Respondent so as to result in the dismissal of the applicant.So far as that case focuses our attention upon the state of minds of the Respondent acting by their employees, this Tribunal readily accepts its guidance. That said, we remind ourselves that the " but for " test is not so much wrong, as potentially but not necessarily incorrect. It is, so far as it goes, incomplete. After all a finding that " but for " his trade union membership, this applicant would not have been dismissed inevitably goes a long way towards a finding to satisfy Section 58. The essential point that that decision makes is that it does not go the whole way along the road.We turn back to the instant case before us. Having regard to the Reasons set out in no less than 36 paragraphs by this Industrial Tribunal, we are entirely satisfied that it applied itself assiduously to discerning the principal reason for the dismissal, and we are entirely satisfied that this cannot be criticised as a " but for " decision. We refer with relative brevity to the particular facts; we refer at greater length to the approach of this Tribunal to those facts to substantiate the finding that we have just made. It is common ground in this matter that the applicant, a long standing employee with a supervisory status, found himself in what was described as the " surplus pool " of supervisory staff. It is common ground that in the event his presence in that pool precipitated his dismissal in October 1991. The Tribunal correctly, in our judgment, directed itself that the critical question here was as to the reason for the applicant being in that pool at that crucial time. As to this, the Tribunal found that in 1989, a reorganisation of the works meant the introduction of what was described as cell management. In paragraph 13 of the Reasons, they find that each cell would consist of a production manager, a production facilitator, one or two conformance engineers, two team leaders and 70/80 operators. They find further, that the vast majority of facilitators would be recruited from the works supervisors.In paragraph 15, they find that the applicant in June 1989 was asked if he wanted to be a facilitator, but declined. They find that at that time, the union of which he was an official, was challenging the introduction of this form of management and it was in those circumstances that he declined. They further find that by reason of his refusal at that stage, he entered the surplus pool.Pausing there, if the history had developed no further, then one readily accepts that the reason that he entered the pool at that time reflected a choice on his part. However, the history did not stop there and developed very materially and what again we learn from the findings of the Industrial Tribunal is that during the ensuing year, his union withdrew its objection to this form of management, so that there was no obstacle from that source to his participation in it. We further learn that during that ensuing period, the Respondents were continuing to recruit facilitators from this pool of supervisors and in the result, certainly two men, Mr Clack and Mr Matthias were selected so as to leave the pool and join respective cells, each as a facilitator. We then, however, go to the critical findings as to this point, set out in paragraphs 17 and 18. Within those paragraphs there is reference to the key member of the respondent staff, the manager, Mr Godsell. What the Tribunal found was as follows:
"..17 Mr Godsell knew the applicant well and also knew that he would make an excellent facilitator. He conceded that men had become facilitators who were not as well qualified or as long serving as the applicant. However, from the time that facilitators were introduced, Mr Godsell was resolute in his view, which did not change, that the applicant was not suitable for such a post because of his Trade Union activities. Mr Godsell made this selection for the facilitator posts from those who had expressed an interest. Mr Hall was not asked again, even when MSF dropped its opposition to the reorganisation. We pause there to point out that if it be the case than an employee's Trade Union activities are so extensive that they interfere with the proper performance of his work, the employer is perfectly entitled to raise the matter with the employee and suggest that because of the increased responsibilities associated with a new post, the employee should curtail the amount of time he spends away from his work station on Union matters. Mr Godsell also conceded that had it not been for the applicant's Trade Union activities, he might well have approached him in an effort to make him change his mind.
18 On 12 November 1990, those who had been selected were seen and offered contracts as facilitators. The remainder, including the applicant (page 31) were seen. The applicant was told "you have no part in my structure" by Mr Godsell. Mr Godsell described these meetings as interviews. They were not; they were very short meetings to inform people whether or not they had been selected as facilitators in the new structure..."Thus it was, finds the Tribunal, that the applicant continued to remain in the surplus pool, so that he was in such pool in the Autumn of 1991 and in particular, so that on 18 October of that year, he was made redundant together with the remaining members of the pool.From paragraphs 17 and 18, it will be readily apparent that this Tribunal was applying it's mind with considerable vigour to the standpoint of Mr Godsell and to the views that he held relevant to these issues. Thus it was, we find, that certainly at those two paragraphs, they were manifestly applying their minds to ascertaining the reason or the principal reason for the purposes of Section 58. Their findings, however, did not stop there. They returned to the same topic in paragraph 22:
"...We are satisfied that in the period between the selection of the facilitators in November and the applicant's eventual redundancy that Mr Clack and Mr Matthias were selected to be facilitators from the surplus pool because of his Trade Union activities the applicant was not reconsidered when the new facilitators were required. We are satisfied that the applicant would have accepted a facilitators post had it ever been offered to him after his Union withdrew their objection to the scheme..."
Again, paragraph 24:
"...We are satisfied that the applicant would not have been made redundant by Rover had it not been for his trade Union activities and the negative attitude of Mr Godsell."
Paragraph 25 includes the sentence:
"... We were not impressed at all with Mr Godsell's evidence and the longer this case went on, the more satisfied we became that Mr Godsell had shut his mind to employing, or continuing to employ, the applicant as a facilitator. To him, the applicant was an active Trade Unionist and therefore a nuisance..."
Paragraph 30. We need cite another like sentence:
"We apologise to counsel for not setting out their submissions in greater detail. We found them helpful in the abstract but discovered later, when we went through the evidence and considered it point by point, that we were unanimous in our view that Mr Godsell had, from the start, considered the applicant to be unsuitable as a facilitator because of his Union activities. Had it not been for those activities, the applicant would have been considered because of his other qualities and his long service."
Finally, we come to two critical paragraphs, 32 and 33.
"..32 The applicant was taking part in Trade Union activities right up until his dismissal. He was dismissed by reason of redundancy because he was in the surplus pool. He was in the surplus pool (a) because he did not volunteer in January 1989 and (b) because at no stage was he asked to reconsider or considered for selection as a facilitator; nor did he ask. He was not asked to reconsider or be considered because Mr Godsell was hostile to his Trade Union activities. The applicant did not himself ask because he did not know the consequences or possible consequences until November 1990; thereafter he thought, wrongly, that he was safe.
33 We are satisfied that the deliberate omission to choose someone from a pool of surplus workers because of their Trade Union activities amounts to a selection. It matters not that the rest of the pool is also dismissed. One looks for the reason why the employee is in the pool. Further, in this case, Mr. Clack and Mr Matthias were selected from the pool after the original selections. The applicant was not. The alternative approach is to argue that the applicant was automatically dismissed because he was in the pool. It is common ground that no further active consideration was given to those in the pool. He only remained in the pool because of Mr Godsell's attitude. Therefore, his dismissal was directly due to his Trade Union activities, ie. a Section 58 reason and the principal reason is not redundancy."This Tribunal has seen fit to quote at length from these robust reasons to demonstrate the strength of the Industrial Tribunal's views having heard the evidence, yet further to enable this Tribunal to assert that it is difficult to envisage reasons which more loyally explore the reasoning of the Respondent which led to the dismissal. It enables this Tribunal further to assert that there is ample factual material as found by the Industrial Tribunal to enable them to make a finding pursuant to Section 58(1) and to enable us to uphold this finding. We are entirely satisfied that the Industrial Tribunal applied the correct test in Law to make the finding that they did.We then turn to the second point taken by Miss Simber and that relates to their finding pursuant to Section 59. Her submission is that the Industrial Tribunal misdirected itself as to Law in using Messrs. Clack and Matthias as " one or more other employees " for the purpose of the comparison that is implicit in subsection (1). This Tribunal does not accept that any point of Law is raised by that submission unless it can be argued that the use of Messrs. Clack and Matthias as comparators was so perverse that no reasonable Tribunal could have taken the same course. It is manifest that this submission cannot be put that high and if it cannot be put that high then there is no point of Law at all. That said, and dealing with the submission on it's merits, this Tribunal is entirely satisfied that it was perfectly proper to use those two employees as comparators as for this particular purpose. It is said by Miss Simber that that use was fatally flawed because there is no finding by the Tribunal as to whether either or both of those men volunteered for the post or were asked to reconsider. There is no finding, she would submit, that puts them in the precise same position as Mr Hall. So far as this Tribunal is concerned, from the passages already set out in this Judgment, there are findings both implicit and explicit amply to justify the use of these two men as points of comparison. We readily infer that as candidates for the post of facilitators, they were no better than the applicant and quite possibly, having regard to what has been said in paragraph 17, not as good as him. Further, it is plain that they were not involved in Trade Union activities and therefore they had a place in Mr Godsell's scheme of things. In our Judgment, the use of these two men as comparators in no way impugns the decision that was favourable to the applicant with respect to Section 59. Having therefore considered the two points that have been raised before us and being unable to find merits in them, we have to dismiss this Appeal.