Wagu v Saginaw Steering Gear [1994] UKEAT 537_92_0911

EAT
Wagu v Saginaw Steering Gear
[1994] UKEAT 537_92_0911 · 1994-11-09

JUDGE HULL QC:

Mr Wagu was a Press Setter Operative with Saginaw Steering Gear, the Respondents, at their works at The Hyde, which is in Hendon. He is a gentleman now aged 51. He was first employed on 15 March 1974 and from what we understand, he must have been excellent employee. He became a shop steward in 1978 and the system being that the shop stewards elect their convener, in 1986 he became the A.E.U. Convener at the works. All apparently went well with his employment and his career until 1991 and then a difficulty arose.Mr Wagu, and other members of the staff were concerned that minorities were disadvantaged at this works, and said that there should be a policy to avoid any discrimination, any disadvantage to members of minority groups. That was well received, so far as one can see, by everybody who heard about it. There was a meeting regarding equal opportunities. A working party was set up and part of the arrangements was that Mr Wagu, in his responsible position, would nominate members of his union who would form part of the working party, or committee as I think it became, to try to bring about these excellent objects of removing any disadvantage to people from minorities.There was a meeting on 18 May 1991 but that was not a success. I am not sure it should have occurred at all. Mr Wagu did not attend and none of his members attended. I should explain, very much by the way, that there were at this time in 1991 certain unhappy disagreements, or as they were called in technical language "failures to agree" which were registered. There was a matter concerning redundancy and there was another matter concerning pay which had led the union to register a failure to agree. One can certainly understand such matters arising because, fairly shortly afterwards, the works did close down or substantially close down, but that is mere history.After the failure of the meeting in May 1991, it was arranged that there should be another meeting on 8 July. This was to be a joint working party. Mr Wagu's union was not the only one concerned, there were to be members of the M.S.F. and the whole party was to be chaired by a Mr Jolly from ACAS. Most unfortunately, Mr Wagu did not attend that either. He and the other shop stewards agreed that they would not co-operate and attend, although, on the face of it, it had no connection with the failures to agree or any other disputes which had arisen. Nonetheless, they wished to underline their disagreements by refusing to attend the meeting.So that led to some unhappiness on the part of management and apparently others too and on 9 July management informed Mr Wagu that they were no longer prepared to recognise him as convener. With regard to that, I should say that there was a procedural agreement which we have looked at, which provided for the presence of shop stewards and which made a number of provisions in favour of orderly trade unionism. Shop stewards were to be elected. The shop stewards were to elect a convener and so on. There was to be time off in accordance with the Code of Practice for trade union activities.A point which arises in this case is that it is said that there was no mechanism in the procedural agreement under which management could refuse to recognise one of these union officials, a shop steward or a convener. That is true. It was conceded, apparently. It was conceded that there was an oral understanding that management could refuse to recognise a particular officer, just as it was the sole prerogative of the members of the union to appoint their shop stewards and of shop stewards to appoint their convener.It had to be the prerogative of management, in the view of Mr Lyle, the Divisional Officer, who gave evidence. They had to be entitled (so to speak) not to recognise a particular union officer. They were as much entitled to do that as the union was to appoint its officers. We do not need to go into that but, at any rate, on the 9th management did say, "we will not recognise you". It was obvious that Mr Wagu had caused management very serious displeasure by his action in relation to this benevolent concept of setting up a joint committee and it was in response to that feeling that he was derecognised (if I may use that word).Then events followed the next day, 10 July, of a very strange and disagreeable sort. Mr Wagu was ordered to return to his place of work as a Press Setter Operative, doing the work for which he was paid. He refused on the basis that there was no right to derecognise him in the way that had been done, at any rate until grievance procedures had been attended to. A failure to agree had been registered.He was orally ordered to return to his place of work. He refused. A good deal was done during the day to try to persuade him. He was given a first written warning and a final written warning and he still did not return to his place of work, observing that his status as the convener was being infringed; and so, since he refused to the work for which he was employed, he was dismissed. He presented his complaint to the Industrial Tribunal on 29 July. He complained of unfair dismissal. He asked for compensation.The answer which was presented on 23 August by the employers said that he had failed to obey reasonable orders in the respect which I have mentioned. The Industrial Tribunal sat for two days at London North under the chairmanship of Mrs Prevezer with two industrial members, on 18 and 19 June 1992, and I must refer to what the Industrial Tribunal held. They set out the events to which I have referred and they set out the evidence which they had heard. They heard Mr Beer, the Personnel Officer. They also heard Mr Lyle and, of course, Mr Wagu. They dealt with his failure to attend the meetings and went into a little detail on that and at paragraph 5 they made a finding and that is criticised. They say there:"5 The Applicant appears to have persuaded his fellow shop stewards and colleagues also to make the protest and not attend [that is the meeting in July]. In the end Mr Lyle [he was the divisional officer of the union] had to convene a meeting of the members in the morning and he managed to obtain a delegation of six from the body of the members to represent the union".So the meeting did go ahead in July albeit without the attendance of any shop stewards. They go on:
"6 As a consequence, the management on 9 July informed the Applicant that because of the disruption that had been caused and the confusion to the employees, that it was no longer recognising the Applicant as a shop steward. The Applicant did not think that the Respondents were able to follow this course and said so.
7 We find that the company was perfectly entitled to withdraw facilities from the convener and was entitled not to recognise the Applicant as a representative of the union".
"8 As a result of their action [management's] they asked the Applicant to return to his normal work station and continue working. This he refused to do. We are satisfied that he was advised by Mr Gilheany, who was the manager of Manufacturing & Material Control, of the necessity for him to return to work immediately and that he had a full discussion about the matter. When he failed to do so, he was given a verbal warning at 8.45 in the morning and further at approximately 10.30 and at 12.45 he was given two written warnings. He still failed to report to his work station as a press setter operator.
9 In the early afternoon, having still failed to return to work he was sent a letter of dismissal terminating his employment at 5 o'clock on that day as he had failed to comply with a reasonable instruction given by the supervisor.10 We find that the instruction was reasonable in those circumstances and that the Respondents could expect the Applicant to return to his work station as he was no longer acting as a convener of the union. This was a reasonable instruction and we find that dismissal in those circumstances by the Respondents was a reasonable response to this refusal.11 We were referred to the various procedures relating to union matters and employees. It is clear that the Applicant had been used to dealing with union affairs and if there was a dispute there were procedures for dealing with these disputes by `failure to agree' procedures which had to be ratified by the shop union committee and registered. In those circumstances it was part of the procedure that neither side would do anything precipitously and the status quo would continue. However the Applicant failed to appreciate that there was a different procedure for grievances and discipline outside the union's sphere. We were referred to documents and they provide for an appeal against any disciplinary and dismissal procedure through each of the higher levels of management and this procedure may be used in conjunction with the trade union procedural agreements but it also may be used without the trade union procedures being involved.12 It is clear from those procedures that any employee who is dismissed must be advised of his rights and advised of his right of appeal. The Respondents did not specifically notify the Applicant of his rights of appeal in the grievance procedures. It may be that Mr Beer [that is the Personnel Manager] presumed that the Applicant as a convener would have known all about these procedures but having heard the Applicant give evidence and hearing him say that he had not been aware of this particular regulation, we find that the Respondents erred in not specifically pointing out to the Applicant that he had a right of appeal. Further, we find that the Respondent acted hastily in conflating the whole of the dismissal procedures i.e. the warnings etc into such a short period of time. We find that any reasonable employer should have given the Applicant some time to think it over and reflect on his situation when he was being made aware that dismissal would follow if he did not obey the instruction. For these reasons we find that the Respondent acted unreasonably within section 57(3) of the Employment Protection (Consolidation) Act in the way that they dealt with the conduct of the Applicant.13 We find that because of the Applicant's conduct, however, he should have been aware of the procedures and he was well aware of the consequences of his action. He agreed that he had conducted himself in the way that had been alleged leading up to his dismissal and he was also aware that he had been told that the working party meetings that had been set up, were of great importance both to the unions and to his members and he failed to act responsibly in these matters. For this reason we reduce his compensation by 95%.I should say straight away that there is no appeal by the employers against the finding that they were guilty of unfairness. They had dismissed him in the course of a single day and they had not pointed out to Mr Wagu that he had rights of appeal.One starts, of course, with the preliminary and elementary point that questions of blameworthiness are questions of degree to be assessed by the Industrial Tribunal as an industrial jury, and that we can never substitute our judgment for theirs. Questions of degree are questions of fact and therefore, unless it can be shown that the Industrial Tribunal is guilty of some error of principle in assessing blameworthiness at 95%, it is not for us to interfere in any way.We look therefore to see what is said in the amended Notice of Appeal, by counsel. The first ground of appeal is that the Industrial Tribunal erred in law when it assessed contribution at 95%. They made, it said:"6(1)(a) .... a perverse finding of fact in that at paragraph 7 of the Decision they found that the Respondents derecognised the Appellant as a shop steward and that they were `perfectly entitled to do so' having regard to the Procedural Agreement between the Respondents and the Amalgamated Union of Engineering Workers and s.30 of the Trade Union and Labour Relation Act 1974 (repeated in the Employment Protection (Consolidation) Act 1978, s.153(1) which asserts the independence a union must have to resist the control or interference of an employer; ... ".It appears to us that that contention is not well founded. The employers were perfectly entitled, it appears to us, to say they would no longer recognise a particular elected official in the position of Mr Wagu. It is true that that might lead, in due course, to an industrial dispute, but there was no question of management seeking to interfere with his election or to say that he was no longer the convener. The fact is they wished no longer to recognise and deal with him as such, in view of the way that they felt that they had been treated.It is rightly asserted by Ms Pedropillai that clauses 3.5 and 3.6 of the Procedural Agreement with the Amalgamated Union of Engineering Workers provide for the election of shop stewards and conveners to be purely internal to the union, but in our belief that principle is in no way infringed by what has taken place here and it appears to us that what is said in support of this is entirely beside the point. There is no question of management seeking to interfere with the union.I should say before I go any further on this that it is strange to find an Industrial Tribunal or indeed, ourselves, dealing with matters of industrial relations in this way and it is well established that Parliament always intended that Industrial Tribunals and other courts should not concern themselves with industrial disputes or, indeed, matters leading up to them. But the fact is that these were matters which were put before the Industrial Tribunal by the Applicant himself. His whole excuse for not returning to work when he was told by management to return to work was that he was in some sort of privileged position as a union convener and that the order that he should return to work was infringing his prerogative or rights as union convener.It appears to us, first of all, that the Tribunal having had these matters laid before it could hardly refrain from paying some consideration to them and, secondly, that it does not follow from the fact that Mr Wagu was a convener, that he was entitled never to work. He would not suggest that himself. There was no evidence, apparently, laid before this Industrial Tribunal that on the day when he was ordered to return to work Mr Wagu was engaged in union activities or said that he wanted time off to carry out those activities. In those circumstances, it may be a purely hypothetical objection that he was making, that he was still the convener and the employers were not entitled to order him to return to work.There is then a reference on Mr Wagu's behalf to the provisions of the Code, the ACAS Disciplinary Practice and Procedure Code. Disciplinary action against a Trade Union Official can lead to a serious dispute if it is seen as an attack on the union's function, although normal disciplinary standards should apply to their conduct as employees. No disciplinary action beyond an oral warning should be taken until the circumstances of the case have been discussed with a senior trade union representative or full-time official.There had been discussions, apparently, with Mr Lyle concerning this business of the working party and Mr Lyle had taken a very different view, as the Divisional Secretary, from that put forward by Mr Wagu, but there it was. The provisions of the Code were laid before the Industrial Tribunal.Then, there is a second ground:"6(1)(b) the Industrial Tribunal made an impermissible finding of fact for which there was no evidence, at paragraph 5 of the decision, when they found that the Appellant persuaded the other shop stewards not to attend the meeting;....".We can deal with that very shortly. There was evidence from Mr Beer that having consulted Mr Wagu himself and other people, he had reached that conclusion. The Tribunal do not make it a ground of their decision, but they say that it appears to have been the fact. It would be rather surprising if a person in Mr Wagu's position as convener of the shop stewards were not in a position to influence his colleagues. Mr Beer understood that to be the position. It seems to us that there is no solid basis there for complaining of the Industrial Tribunal's decision.The next ground of appeal is the finding of fact, at paragraph 10 of the Decision, that the order to the Appellant to return to work was reasonable and dismissal was a reasonable response to the Appellant's refusal. It is said that that was based on an error of law and/or was perverse having regard to the Procedural Agreement between the Respondents and the Amalgamated Union of Engineering Workers and the Respondents' written disciplinary procedures, both of which required the status quo to be maintained once the Appellant had registered dissatisfaction and a failure to agree with the disciplinary action taken against him.The first point is that it appears that there was no registered failure to agree. The second is that this was not an industrial dispute at all and did not come under the industrial code; it was simply a matter of refusing an order to do work. The third, and obvious, comment is that if the status quo was to be preserved, clearly Mr Wagu's obligation to do the work to which he was employed to do was one part of the status quo, which should be preserved. He might very well protest "I am still the convener so far as my union is concerned and my colleagues, the shop stewards and I go to work now on that basis only". He might indeed say, "I shall continue to ask for time off for union duties". He did not do anything of the sort. He simply blankly refused to go to work.So it appears to us that there is nothing in that.

(d) :

"6(1)(d) further the Industrial Tribunal erred in law in that, at paragraph 13, they conflated the Appellant's failure `to act responsibly' in respect of his trade union duties with the reason for his dismissal and reduced compensation by 95% in that this was, if it was a mistake not to attend a meeting on 8th July 1991, the Appellant's first mistake and that his acts were solely concerned with promoting the interests of the Amalgamated Union of Engineering Workers and its members; ....".When one looks at paragraph 13, which I have already read, it is true that there is reference made there to his failure to attend the working party meetings and the importance of those meetings, but the Tribunal were quite plainly, on a fair reading of the Decision as a whole, not dealing with industrial relations at all. This joint committee was not (so to speak) a matter which was in issue between employers and employees and it only came into the story because it was part of the reason why Mr Wagu had refused to go to work when told to by his employers; and in those circumstances, it appears to us that the Industrial Tribunal quite rightly directed themselves to the question of what share of blame he should bear for his dismissal. We do not think there is anything in that point.Then it is said:"6(1)(e) the Industrial Tribunal erred in law in assessing the merits and demerits of the Appellant's actions on behalf of the Amalgamated Union of Engineering Workers and/or action taken by the Amalgamated Union of Engineering Workers Itself ....".It seems to us that the Tribunal did not embark on that task at all. They considered the facts in the round as they were bound to, and what was laid before them. It is true that if they had been asked to judge the merits of an industrial dispute or the rights and wrongs in an industrial dispute, they would have been bound to tell themselves that that was something outside their sphere.What they were doing was deciding the share of responsibility for a dismissal which arose from Mr Wagu's refusal to work and having thought about it as carefully as we can, it appears to us that there is nothing in the contentions of law made here. We can, of course, only entertain an appeal on a ground of law.A great many submissions which were made to us were quite clearly, it appears to us, matters of fact and evidence and not law and having perhaps analysed and gone rather too fully into the facts, all we can say is that having considered it, we cannot find any error of law on the part of this Industrial Tribunal.It is almost too obvious to need saying that a different Tribunal or we ourselves, if we were charged with trying the case, might have arrived at a different conclusion, particularly in a matter such as share of responsibility and contribution, which must be a matter of impression and common sense.It is axiomatic that in matters like that there is often more than one view, but we do not find here, having listened carefully and been very grateful for the submissions made to us, any error of law which would entitle us to interfere in any way. We are obliged to dismiss the appeal.