Blank & Anor v Devonport Management Ltd [1994] UKEAT 703_93_1110

EAT
Blank & Anor v Devonport Management Ltd
[1994] UKEAT 703_93_1110 · 1994-10-11
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Exeter on 25th June 1993. For Full Reasons notified to the parties on 22nd July 1993, the Tribunal unanimously decided that the Applicants, Mr Ronald Blank and Mr Christopher Gate, were fairly dismissed by the Respondents, their former employers, Devonport Management Ltd ("DML"). Mr Blank and Mr Gate appealed against the decision by a Notice of Appeal dated 1st September 1993.

Background Facts

The relevant facts found by the Tribunal can be conveniently summarised as follows:-(1) Mr Gates started employment at the Devonport Dockyard in Plymouth on 21st January 1963 and was dismissed nearly 30 years later on 6th November 1992. For 21 years prior to his dismissal he was a full time shop steward representing members of the AEEU.(2) Mr Blank started employment at the Devonport Dockyard on 2nd September 1963. He was also dismissed on 6th November 1992, having, for the previous 10 years, been a full time shop steward representing members of the EETPU.(3) In January 1992, the Personnel Director of DML wrote to the District Secretaries of the two Unions indicating that it was intended to review the numbers of full time trade union representatives. By April 1992, DML had decided that it wished to reduce the number of full time union representatives from 10 to 2, aiming at an interim figure of 5 to be achieved by 30th October 1992.(4) Both Unions objected to the proposals and refused to co-operate in the identification of individuals to be retained as full time shop stewards. By the beginning of October there was deadlock. There was no further consultation or discussion.(5) After a meeting attended by Mr Blank and Mr Gate on 28th October 1992, letters were issued on the same day giving them until 11.30 a.m. the following morning to accept DML's offers of redeployment in the Marine Department in the posts to which they had been originally appointed, a fitter/turner in the case of Mr Blank, and electrician in the case of Mr Gate.(6) On 29th October the AEU District Secretary wrote to DML objecting to the proposed redeployment of both men.(7) On 30th October they were both dismissed with effect from 6th November.The circumstances of their dismissal led them to make applications to the Industrial Tribunal in November 1992 complaining of unfair selection for dismissal "due to full time Trade Union duties". DML's case, as stated in a Notice of Appearance dated 9th December 1992, was that they were not employed as full time Trade Union representatives. It was denied that they were dismissed for any of the reasons specified in S.152(1) or in the circumstances and for the reasons specified in S.153 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 152 provides that, for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 (Unfair Dismissal),
"The dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee - (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time ..."

"An appropriate time", according to S.152(2), means -

"(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."
Section 153 deals with selection for redundancy on grounds related to union membership or activities. It provides that -
"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 for (or, if more than one, the principal reason) why he was selected for dismissal was one of those specified in S.152(1)
the dismissal shall be regarded as unfair for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 (Unfair Dismissal)."DML contended that Mr Blank and Mr Gate were dismissed for "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held" within the meaning of S.57(1)(b) of the Employment Protection (Consolidation) Act 1978 or, alternatively, because of redundancy. The "other substantial reason" was alleged to be that they refused to agree to return to their old jobs. Finally, it was argued that DML had acted reasonably in terminating their employment for that reason and the dismissal was not unfair.

The Decision of the Industrial Tribunal

The Industrial Tribunal concluded that the reason for the dismissal of Mr Blank and Mr Gate was "some other substantial reason" and that the dismissals were fair. The Industrial Tribunal prefaced its detailed considerations by a statement that, where there was a conflict of evidence, it preferred the evidence of DML. In brief, the reasons for the Tribunal's conclusions were as follows:-(1) Both Mr Blank and Mr Gate were employed in their original positions, though they in fact spent their working days for many years on Trade Union duties. Their original jobs continued to exist and they were asked to return to them, but refused. The Tribunal rejected the contention that they were employed as Trade Union representatives, that there was a redundancy in that position and that the dismissals were automatically unfair under S.152 or S.153 of the 1992 Act.(2) The dismissals were for "some other substantial reason". The Tribunal accepted DML's contention that there was "simply a need to reduce the number of full time representative roles".(3) The Tribunal said that it followed that the Applicants' claim for unfair selection for redundancy consequently failed. The Tribunal added that -
"Even if it did not, the applicants have not satisfied the Tribunal as to which "pool" of workers any selection criteria would or should have applied ie, would LIFO (last in, first out) apply to the group of unit representatives; the fitter/turners or the electrical fitter/turners; or indeed some other group."
(4) Finally, the Tribunal considered the "procedural aspects of these dismissals" and concluded that there were no procedural irregularities. The Applicants were aware from April 1992 of the risk of having to cease full time Union activities and return to doing the actual jobs they were employed to do. There was an onus on them to participate in consultation for which adequate time had been allowed by DML, but they had chosen not to deal with points or were slow to respond.

Submissions of DML

Although it is for Mr Blank and Mr Gate, as Appellants, to demonstrate that there was an error of law in the decision of the Industrial Tribunal, it is convenient to deal with the submissions of DML first.In his submission that the appeal should be dismissed, Mr Bowers, who appeared for DML, prefaced his detailed submissions by a reminder of the respective roles of the Industrial Tribunal and this Appeal Tribunal.The Industrial Tribunal's decision need not be a "product of refined legal draftsmanship". It passed muster if the decision told the parties in general terms why a party had won or lost. The decision should not be subject to microscopic examination. The "fine tooth comb" approach has been rejected by past decisions. The absence of express mention in a decision of a piece of evidence should not be taken to mean that the Tribunal had overlooked that evidence. It was irrelevant that the Appeal Tribunal might, on the same facts, reach a different conclusion and it should be slow to find that a Tribunal decision was perverse in the absence of Notes of Evidence on which the decision was based. Application by the Appellants for production of Notes of Evidence was refused in this case at an earlier stage.These general comments were not disputed by Mr Carr, who appeared for both Appellants.

Mr Bowers then made detailed submissions which may be summarised as follows:-

(1) As to the reason for dismissal it was for the Tribunal to decide what was uppermost in the mind of DML at the date of dismissal. The Tribunal performed this task. It correctly looked at the contract of employment which, in its view, largely determined the issue of what was "work of a particular kind" which the employee was employed to do with the meaning of that expression in S.81(2)(b) of the 1978 Act. The clear finding of the Tribunal was that they were employed in their original capacities. That was a finding of fact against which there is no appeal.(2) It followed from that unappealable factual conclusion that there was no redundancy arising from their refusal to take up the contracted jobs. There was no cessation or diminution of need by DML for employees to carry out "work of a particular kind" carried out by these employees.(3) The reason for the dismissals was "some other substantial reason". That reason was the refusal of both Appellants to return to their "proper jobs". The need to reduce the number of full time Trade Union representatives, which is referred to in the Tribunal decision, could also amount to some other substantial reason for dismissal.(4) The Tribunal gave proper consideration to the application of S.57(3) of the 1978 Act and the issue whether the dismissals were unfair having regard to the reason shown by the employer and whether the employer had in the circumstances acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. In paragraph 2 of the Full Reasons the Tribunal identified three issues for decision. The third was "were the dismissals procedurally flawed so as to make such dismissals unfair"? The Tribunal found that there was no unreasonable selection of the two Appellants, because there was no properly definable pool. There was no failure to seek out other positions.(5) The Tribunal decided that there was proper consultation. Collective consultation commenced on 13th April 1992 and continued until the dismissals took place. The respective positions of the parties were clear. They were poles apart. The Tribunal found as a fact that there were no procedural irregularities. Both Appellants were aware of the prospect of returning to their jobs and in the process of consultation had chosen not to deal with points or were slow in responding to them.In addition to these points Mr Bowers objected to the raising in this appeal of the contention that, if the dismissals were for some other substantial reason, they were unfair by reason of improper selection or failure to return to existing jobs or under S.152 of the 1992 Act. He pointed out that the Applicants' case in the Originating Applications was that they were dismissed for trade union activities or that there was unfair selection for redundancy in breach of S.153 of the 1992 Act. They had not advanced to the Tribunal an alternative case that they were dismissed for some other substantial reason. Their case of dismissal for trade union activities, whether past or future, was bound to fail. If the Appellants were right and there was automatic unfairness as such, employers would never be able to reduce the number of full time shop stewards without running the risk of automatic unfair dismissals. That was something Parliament could never have intended.In brief, the position was that, once the Industrial Tribunal was satisfied that there was some other substantial reason, it was clear that the dismissals were fair, unless they were procedurally flawed and the Tribunal found that they were not.

Conclusions

We have heard rival submissions from Mr Carr on behalf of the Appellants and he has satisfied us that, despite Mr Bower's careful and detailed arguments, this appeal should be allowed and the matter remitted to the Industrial Tribunal.

Our reasons for this conclusion are as follows:-

(1) The Industrial Tribunal, having rejected the case that the dismissal was for trade union activities, failed to identify clearly exactly what was the "other substantial reason" for their dismissal. This failure had its impact in turn on the approach of the Tribunal to the question of unfairness under S.57(3).(2) The reason for dismissal relied on by DML in its Notice of Appearance as some other substantial reason was refusal of the Appellants to return to their old jobs.This is reflected in paragraph 35 of the decision where it is stated that the Appellants were employed in their original capacity, that those jobs continued to exist, that they were asked to return to those jobs, but refused and that there was no dismissal for trade union reasons. It is, however, also necessary to look at paragraph 34 of the decision which refers to DML's argument that there was "simply a need to reduce the number of full time representative roles". That was an argument against the Appellants' contention that they had union jobs which came to an end, that the dismissals were for union activities and therefore automatically unfair.(3) The identification of the reason for dismissal is important, both in the consideration of the Appellants' claim that they were dismissed for trade union reasons and in consideration of DML's contention that they were dismissed for some other substantial reason. The first question for the Tribunal was whether the dismissals fell within either S.152 or S.153 of the 1992 Act. The Tribunal appear to have thought that this issue was determined by consideration of one matter only, namely whether Mr Blank and Mr Gate were employed in their original positions, but in fact spent their working days on trade union duties; or whether they were employed as trade union representatives (see paragraph 33 of the decision). The Tribunal resolved that issue by finding that they were both employed in their original jobs which continued to exist, but they had each refused to return to those jobs. That was regarded by the Tribunal both as a conclusive answer to the complaint that they were dismissed for trade union activities and to the question of what was the true reason for their dismissal.(4) In our view, this was a misconceived approach. The Tribunal wrongly confined its consideration of the reason for dismissal to one question only, namely the contractual question. Other questions should have been considered but appear not to have been. Why were the Appellants asked, after many years as full time shop stewards, to return to their original jobs? If the answer to that question was the need to reduce the number of full time union representatives, the next question is why did DML wish to reduce the number of full time union representatives and, depending on the answer, was the dismissal for a reason which fell within S.152 or S.153? More specifically, why were Mr Blank and Mr Gate selected for dismissal? There appears to have been no consideration of these questions because the Tribunal erroneously thought that the answer to the contractual question provided the answer to the question of the reason for dismissal. For these reasons we accept Mr Carr's submissions that, in determining the reason for dismissal, the Industrial Tribunal wrongly restricted its consideration of matters to one issue, namely what were the Applicants contractually employed to do. In doing that the Tribunal appeared to regard the answer on that issue as determinative of the reason for dismissal. The contractual issue was relevant but not, in our view, determinative. It was necessary for the Tribunal to look at all the circumstances surrounding the dismissals to determine what was the true reason for dismissal, whether it was for a reason contended for by the Appellants or whether it was for some other substantial reason and if so, what was that reason.(5) Its erroneous approach explains a further error of law correctly identified by Mr Carr in his submissions: that is the failure of the Tribunal to give full consideration to the application of S.57(3) to the facts of the case. The Tribunal considered the issue of procedural unfairness in relation to consultation, but it does not appear that it ever considered the question of substantive unfairness, namely whether DML acted fairly in treating the reason for dismissal (whether it be a need to reduce full time trade union representatives or the refusal of the Appellants to return to their old jobs) as a sufficient reason for dismissing them. The Tribunal appear to have thought that, as it concluded that it was not dealing with a redundancy situation, but with some other substantial reason, it was unnecessary to consider any other aspect of unfairness, save for procedural unfairness. It appears from the decision that the Tribunal considered only procedural unfairness with the result that there was no consideration of whether it was unreasonable of DML to require these two particular employees to return to their old jobs which they had not done for many years. It did not consider whether it was reasonable to insist on the reduction in the number of full time representatives; or whether it was reasonable to select Mr Blank and Mr Gate and ask them to cease to be shop stewards; or whether it was reasonable for them to refuse to return to their old jobs. It seems to have been assumed that they could not reasonably refuse to return to their old jobs simply because, contractually, those were the jobs they were employed to do..For all these reasons we allow the appeal and remit the matter to the Industrial Tribunal. We add that we do not find it necessary to deal with the arguments briefly advanced on the Appellants' contention that the Tribunal was perverse in finding that there had been adequate individual consultation. If it had been necessary to decide that point, we would have not found any perversity or other legal flaw in the Tribunal's decision on that aspect of the case.