Fulcrest Construction Ltd v Whitehead & Ors [1994] UKEAT 549_93_1105

EAT
Fulcrest Construction Ltd v Whitehead & Ors
[1994] UKEAT 549_93_1105 · 1994-05-11
MR JUSTICE MORISON: On January 25 1993 an Industrial Tribunal held at London North had before it an application by eight members of the EPIU, the Electrical and Plumbing Industries Union, for interim relief under Section 77 of the 1978 Act which provides as follows:
"(1) An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed by his employer and that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 57A(1)(a) and (b) may apply to the tribunal for interim relief.
(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.(4) The tribunal shall give to the employer (not later than seven days before the date of the hearing) a copy of the application together with notice of the date, time and place of the hearing.(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so."The brief facts on which their application was made are these. Between June and November 1992 each of the eight men were employed by Fulcrest Construction Limited, whom we shall call Fulcrest, to work on the Channel Tunnel project, pursuant to a labour only contract made between Fulcrest and one of the principal contractors, Messrs Balfour Beatty. Fulcrest are party to the National Joint Industry Board Agreement, under which sole Union recognition is given for this category of worker to the EETPU.The employees case was that when it was discovered that they were members of the EPIU Fulcrest becoming increasingly hostile to them and referred to their Union in derogatory terms. On November 3 1992 Fulcrest dismissed thirteen of their employees, including the eight Applicants. At the Tribunal a Fulcrest witness said that the men were chosen for dismissal by Balfour Beatty and not by them and produced a letter from Balfour Beatty in support. Having directed itself that before granting relief the Tribunal had to be satisfied that the applications had a "pretty good chance of success", it recited the various matters advanced by Mr Carr, the Applicants Union Representative, in support of the application and concluded as follows, [paragraph 6 of the decision]
"We can well understand the reasons for the Applicants' suspicion of the Respondents reasons for their dismissal. However, on the basis of the limited evidence which has been addressed before us, we have come to the conclusion that the Applicants have not done sufficient to establish a reasonable probability of showing that it was, in fact, the Respondents who made the choice of those who were to be selected for redundancy. The Applicants can only succeed in winning this application if they can show that it was the Respondents who, either directly or indirectly, chose the Applicants for dismissal for trade union reasons. Given the documentary evidence before us, we are not satisfied that the Applicants stand a sufficiently good chance of displacing the inference that it was Balfour Beatty who made the selection to enable them to succeed in these applications. We therefore dismiss the application."
As was anticipated by that Tribunal (they had said that they thought it probable that the applications would come before the Tribunal for a full hearing on the substantive claim) the matter came before a differently constituted Industrial Tribunal on May 24 and 25 1993. The applicants were represented by a different Union official and Fulcrest was represented by the same Counsel who had appeared at the earlier hearing.The Tribunal unanimously dismissed the complaint that the Applicants had been dismissed from their employment by reason of their Trade Union activities, which would have made their dismissal automatically unfair (Section 58 of the Act), and decided that they were dismissed by reason of redundancy. Essentially, the Tribunal found as a fact that a meeting on November 3 1992 attended by, amongst others, representatives of Transmanche Link TML, the consortium responsible for constructing the Tunnel and Fulcrest and Balfour Beatty, it was agreed that as Balfour Beatty were to shed labour it was right that labour only sub-contractors, including but not limited to Fulcrest, should also shed employees. All the eight men were on a list with other non-EPIU members. Whilst there may have been discussions with Fulcrest supervisors before the dismissals were effected, the Tribunal decided that it was Balfour Beatty who had the right to decide on selection. This was accepted by the Tribunal to be an unusual relationship. However the Tribunal were satisfied that that was what happened, largely because of the impressive evidence given in an impartial manner by Mr Donoghue, TML's Industrial Relations Organiser.The Tribunal said this:6. "However, the Tribunal cannot quarrel with Mr Donoghue's and Mr Stewart's evidence and, as has been said, Mr Donoghue appeared to the Tribunal to be an extremely honest and, indeed, impartial witness. Balfour Beatty were saying that the men were surplus to requirements and thereby there was a redundancy situation pursuant to section 81(2)(b) of the Act. It was ultimately Mr Stewart's decision to dismiss the Applicants as selected because he was the employer. However, the selection of those to be made redundant was made by Balfour Beatty Power Ltd.7. If the Tribunal was to find in favour of the Applicants, the Tribunal would have to find a conspiracy between Balfour Beatty Power Ltd and the Respondent company to make these Applicants redundant. On the evidence before it, the Tribunal cannot find as a fact that there was a conspiracy."At the end of the hearing Mr Duggan, on behalf of Fulcrest, asked for costs against the Applicants. The Industrial Tribunal dealt with that application in this way, and I cite from paragraph 10:
"Mr Duggan, at the conclusion of the hearing, requested costs pursuant to rule 11(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 in that it was maintained that, in bringing the Applications, the Applicants had behaved frivolously, vexatiously or otherwise unreasonably. He referred, in particular, to paragraph 6 of the decision on 25 January 1993 in relation to the Interim Relief application. This states:
"The Applicants can only succeed in winning this application if they can show that it was the Respondents who, either directly or indirectly, chose the Applicants for dismissal for trade union reasons. Given the documentary evidence before us, we are not satisfied that the Applicants stand a sufficiently good chance of displacing the inference that it was Balfour Beatty who made the selection to enable them to succeed in these applications"
. By a majority, the Chairman dissenting, the Tribunal did not consider that, in bringing these otherwise unreasonably. Costs are not awarded. The majority considered that, in view of Mr Stewart's assertion when he dismissed the Applicants that it was his decision to dismiss, the Applicants were reasonable in bringing their cases to a Tribunal hearing. The Chairman would have awarded costs in view of the decision of Mr Bano on 25 January 1993. The Chairman accepted Mr Stewart's evidence that he spoke in anger on that day."The Tribunal decision was entered in the Registrar on June 4 1993. Solely in relation to costs, Fulcrest have filed a Notice of Appeal which was received within time on July 14 1993. The essence of the Notice of Appeal is that:
"The Applicants knew or ought to have known that their application stood no prospect of success so that by persisting in the application the applicants were acting frivolously, vexatiously or otherwise unreasonably:"
and that the majority decision on costs focused on the wrong question, namely what Mr Stewart said when dismissing the Applicants rather than by asking themselves whether the Applicants had any basis for believing that their application had any prospect of success in the light of the material available to them after the interim hearing. Costs are of course essentially a discretionary matter. Orders for costs are rarely made and when made are rarely the subject of an appeal.This Court only has jurisdiction to interfere with any decision of a Tribunal on a point of law. It is not for us to substitute our own judgement for that of a Tribunal unless we are satisfied that the decision was wrong in principle or perverse. It seems to us that the majority were entitled to take the view which they did. Dismissals on the ground of Trade Union membership or activities is not likely to be easy to prove because it is unlikely that an employer will admit it or generate documents which will provide direct evidence of it. Like discrimination on other grounds it will often have to inferred from surrounding circumstances.Here, the proposition for Fulcrest was that Balfour Beatty selected the men for dismissal although they were employed by Fulcrest. That is a most unusual arrangement and an applicant could be forgiven for believing that such an arrangement would be difficult to prove bearing in mind that none of them had been told of it when they were dismissed. Indeed what they had been told apparently was inconsistent with it.The Tribunal at the preliminary hearing recognised that the Applicants had a right to be suspicious as to the true reasons for their dismissal. Further it was the evidence of Mr Donoghue at the substantive hearing which effectively destroyed their applications. That evidence was not available at the interim hearing. What was said by the Tribunal at the preliminary hearing does not amount to a costs warning of the sort contemplated by the Industrial Tribunal Rules of Procedure. The Chairman gave no indication that he thought that at a substantive hearing the Applicants would be bound to fail. At that stage he had not heard all the evidence.It seems to us that Mr Duggan seeks to read far more into what the Tribunal said at the preliminary hearing than are justified by the words of the decision. We should add that Mr Duggan submitted to us that the only reason why the Industrial Tribunal at the first hearing indicated that the matter would be going to a full hearing and referred to the fact that the evidence was at that stage limited was because the Applicants had indicated that they themselves wished to adduce further evidence. Even if that is right, and we accept that it may be, that does not alter the fact that the Tribunal on the first occasion did not give any indication that on the basis of the material as presented to them it would be a hopeless case to pursue.We regard this appeal therefore as without substance. The fact that the members of the Industrial Tribunal disagreed as to the costs order shows we think that they considered it with care. It also shows that it may have been a finely balanced decision and is an example of the sort of judgement on a discretion matter with which we ought not to and cannot interfere as there is no evident error of law. Accordingly, we would say that the appeal should be dismissed.