Hardaker v Iron & Steel Trades Confederation [1995] UKEAT 1203_94_0205

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 1203_94_0205

Case No Appeal No. EAT/1203/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Hardaker

Iron & Steel Trades Confederation

Date 2 May 1995

[1]BAILII case number: [1995] UKEAT 1203_94_0205 Appeal No.

EAT/1203/94

EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 2nd May 1995 Before THE HONOURABLE MR JUSTICE MORISON MR G M WRIGHT MBE MR K M YOUNG CBE MR E M HARDAKER APPELLANT IRON & STEEL TRADES CONFEDERATION RESPONDENTS Transcript of Proceedings JUDGMENT PRELIMINARY HEARING Revised APPEARANCES For the Appellant MR PETER O'BRIEN (Representative) MR JUSTICE MORISON : This is a Preliminary Hearing, the purpose of which is to determine whether there is any arguable point of law raised by the proposed Appeal, against a unaminous decision of an Industrial Tribunal held at Leeds which dismissed the employee's complaints of unfair dismissal, dismissal contrary to Section 152 of the 1992 Act, that is, dismissal on grounds related to union membership or activities, and that he had been unjustifiably disciplined or disadvantaged contrary to Section 66 of the Employment Protection (Consolidation) Act 1992 which provides a remedy to a member of a Trade Union who claims that he has been unjustifiably disciplined or disadvantaged. The brief facts relevant to our decision we take from the Industrial Tribunal Decision, and may be shortly stated. The Employee had been employed by the Iron and Steel Trades Confederation, a Trade Union, hereafter referred to as the "Employers", from 1977 until his dismissal on 18th November 1993. In his last position he was a Senior Divisional Organiser. He sought but failed to obtain election to the post of Assistant General Secretary, and ran a vigorous campaign. A letter of support from a branch of the Union, typed in strong language was widely circulated, and it was thought that defamatory matter might have been contained in it. The Union held an Internal Enquiry and discovered that the branch officials primarily responsible for its language were saying that the Employee had been aware of its contents prior to its distribution; whereas the Employee was saying that he only became aware of its terms after its distribution. The Employers' Executive Council set up a Tribunal to consider whether the branch officials and the Employee had brought the Union into disrepute, contrary to Rule 44. The Employee took the point that the letter notifying him of the charges, in effect, pre-empted the decision to be taken, and effectively a decision had already been made that he was guilty. This response was considered, and the Executive Council, on 18th August 1993 decided to drop all those charges, as a majority thought the points made by the Employee were well founded. However, in anticipation of a different outcome, the Employee spoke to an Executive Council member and in effect threatened that certain things would happen if the branch officials were not exonerated by the date of the Executive Council, namely 18th August 1993. In addition, the Employee had entered into correspondence with the General Secretary, and a reporter from a local newspaper was sniffing around the possibility that there had been misfeasance by Council members in relation to their expenses, and a question was raised as to the Employee's involvement in that matter. At their meeting, the Council considered all these events. And decided that in view of his various allegations against the Union and his threat, as it was seen to destroy the Union, the question of his continued employment with the Employers should be addressed. He was asked to attend a sub-committee of the Council on 19th August 1993. After a hearing in which he admitted being the author of various letters, he was told that the sub-committee would be recommending to the Council that his services be determined on the grounds of an irreversible breakdown in trust and confidence. And he was told that, he had a right of appeal to the Council. The Executive Council endorsed the recommendation of the sub-committee, and determined that the Employee should be dismissed on notice. A few days later, a further meeting of the Council was convened to hear the Employee's appeal against such a decision. The Council was in the embarrassing position that, constitutionally, it had to receive the recommendation from the sub-committee, and was also the Appellate body, in relation to the Employee's dismissal. They sought partially to overcome that difficulty by offering the Employee an opportunity to object to people sitting on it, who had previously sat on the sub-committee. But this offer was refused by the Employee and the Appeal proceeded. The Employee did not impress the Council by the tone or manner of his presentation. And by the end of the meeting, even those who had been sympathetic to his cause were now in favour of the Appeal being dismissed; and he was told of the decision. Membership of the Union goes hand in glove, in one sense, with being employed in the industry for which the Union is recognised for bargaining purposes. On dismissal from his employment, he ceased to be employed in the industry, and it was indicated that his membership of the Union would cease at the same time as his employment. The conclusion of the Industrial Tribunal, can be briefly stated. The reason for the dismissal was the Employers' perception of the Employee's conduct i.e. misconduct within Section 57(2) of the 1978 Act.

[2]Where it conflicted, the Industrial Tribunal preferred the Employers' evidence to that of the Employee.

[3]The Employee had been responsible for the press enquiries, and played an instrumental part, contrary to his denial, in the letter circulated by the branch, which started off the whole unhappy business.

[4]Contrary to his denial, the Employee had threatened to destroy the Union.

[5]The Employers complied with what was expected of them, in the way of a proper investigation.

[6]The Tribunal rejected the argument that the dismissal was procedurally unfair, having looked at the matter in the round, as they put it. [See paragraph 32.]

[7]The Employee was not being disciplined by reason of his membership of a Union, rather by reason of his position as an employee.

[8]The Employee was the architect of his own misfortune.

[9]In all the circumstances, a dismissal was within the range of reasonable responses a reasonable employer might have adopted. It seems to us, with respect to the able argument, which has been presented to us to the contrary, that there is not a beginnings of an arguable point of law against the findings of the Industrial Tribunal, which were all findings of fact. The Industrial Tribunal carefully distinguished between the Employee's activities as a member of the Union, and as an employee. And we cannot accept the argument made by Counsel on the Employee's behalf, that, the Employee's conduct was protected under Section 65(3) and 65(4) of the Act, because the Employee was seeking, as a member, to seek redress for supposed wrongs. The essence of the Employers' complaint is that the Employee had `gone native' or become `disaffected' and had decided that he no longer trusted his colleagues and that he wanted to destroy the Union as it was presently managed, because he suspected that it was not being run in a proper manner. Having reached that position, there was an irremediable breakdown in trust and confidence necessary for the maintenance of the employment relationship. The employee of a Union is not protected by Parliament, in our judgment, against being disciplined for his activities as an employee. The Industrial Tribunal carefully distinguished between his activities as a member, and those of an employee, in a carefully reasoned and well structured decision. In relation to the complaint that he was dismissed for trade union activities; again the Industrial Tribunal has found as a fact that, the member was predominantly engaged in his own activities, and not those of the Union. That finding, in our judgment, is unappealable. The Notice of Appeal simply seeks to raise again points of fact which were fully considered by the Industrial Tribunal and properly dealt with. In addition to their finding that he was engaged in his own activities, the Tribunal went on to say:

"... It was manifest to us that the principal reason for dismissal was the applicant's conduct in relation to the threat to destroy the respondent and a breakdown of trust and confidence. ..."

The final complaint was, that the Employee has been unjustifiably disciplined by the Employers, namely, dismissed from the Union, or subjected to some other detriment; and that the reason or, one of the reasons for his dismissal, was the Employee's conduct in asserting that the Commissioner for Trade Union members, or Certification Officer should be involved, and the Inland Revenue informed in relation to the possibility of expense claims being wrongly submitted and paid to members of the Council; and that that was conduct falling within Section 65(2)(c) of 1992 Act. The Industrial Tribunal said that such a complaint did not get off the ground because the Employee's treatment was not by reason of his threats to go to outside authorities as alleged. Further they found, that the Employers had a good defence under Section 65(5). The Industrial Tribunal concluded that the Employee was dismissed pursuant to his contract of employment. And that this had nothing to do with the Employers qua member. He was not being disciplined or disadvantaged under the rules of the Union, which is the prerequisite to the application of Section 64 and Section 65, see Section 64(2). To quote the Tribunal:

"In this case we find that the determination was made and action taken pursuant to the applicant's contract of employment."

These findings were of fact, and we are not persuaded that there is any arguable point of law shown in the grounds of appeal. Accordingly, we have alternative but to dismiss this Appeal.