Gambone v Goodyear GB Ltd [1995] UKEAT 190_95_2205

EAT

Gambone v Goodyear GB Ltd

[1995] UKEAT 190_95_2205 · 1995-05-22

HIS HONOUR JUDGE SMITH QC: This Appellant now seeks leave for the matter to proceed to a full appeal hearing against the decision of the Industrial Tribunal sitting in Birmingham on 26 November 1994, deciding that the Appellant was unfairly dismissed on the 21 May 1993. Due to the fact that he was then serving a prison sentence the Appellant was unable to attend the Industrial Tribunal hearing but the Industrial Tribunal paid regard to his IT1 and his written representations and other documents.

The Respondents are a large and well-known firm of tyre manufacturers. The Appellant was employed as a back-end man working at the Respondents' factory, which employed some 3,000 people at that time. He was an elected shop steward, representing all five shifts.

I am not going to go any further into the detail of this matter but what it boils down to is the Appellant requested time off from a Sunday evening-Monday morning shift on the grounds that he could attend to Union duties. Putting it very shortly indeed, he was refused time off but nevertheless he took the time off. Ultimately, there followed disciplinary proceedings and the Appellant was dismissed in consequence of those disciplinary hearings. He took the matter to the Industrial Tribunal and made complaints in relation to a number of matters set out at page 62 in the bundle:

"a. Right not to suffer action short of dismissal for trade union membership or activities.

b. Right not to be unfairly dismissed for trade union membership or activities.

c. Right not to be unfairly dismissed.

d. Right to paid time off for trade union duties; right to time off for trade union activities."

That gave rise to a number of concurrent matters which the Industrial Tribunal had to deal with. They had to deal with a complaint of unfair dismissal. In the context of the complaint for unfair dismissal they had to investigate very carefully the ground for dismissal to make sure that it was not a ground, in fact, under s.152 for dismissal on grounds relating to union membership or activities. They had also to consider the claim for payment for time-off for trade union duties under s.169 of the Trade Union and Labour Relations 1992 Act and in our judgment they also had to consider an application for compensation by the Appellant under s.172 of the 1992 Act in respect of an unreasonable refusal by the employers to allow him time off.

The Tribunal dealt at length and with the greatest care in a very well reasoned judgment with the allegation of unfair dismissal and, in particular, they considered very carefully whether there was any "hidden agenda", if I can put it that way, as to whether the reality was, whatever the employers said they were doing, they were in fact dismissing on the grounds relating to Union membership or activities. They rejected that allegation completely but they did find a considerable number of flaws, and quite serious flaws, in the procedure and the way in which the disciplinary proceedings were dealt with and, indeed, they also found, on one reading of their decision, that the Respondent employers had unreasonably rejected the request made by the Appellant for time off. It must be added that the Tribunal noted and endorsed the very strong view of the employers that the Appellant was a trouble-maker, a view which was apparently, to some extent, supported by the Appellant's Trade Union. All those matters are to be seen in their full context in the lnegthy and careful reasons of the Industrial Tribunal. The Tribunal concluded that there had been an unfair dismissal because of the defects in the procedure, which were serious, but then they went on to decide that the Appellant had contributed 80 percent to his own dismissal for misconduct in defying the employers' decision that he would not be granted time off by deliberately taking time off.

They rejected his claim for monies for payment in respect of time off and that claim, of course, could not get off the ground due to the fact that permission was never given for time off.

However, having looked at the Industrial Tribunal's decision with care, we concluded that it may be arguable here and we say not more than that, that the Tribunal, who had a great number of interrelated matters to deal with, did not specifically attend to dealing with the claim for compensation in respect of the refusal to allow time off. There is no doubt that there is a difficult relationship between a claim for unreasonable refusal to grant time off on the one hand and a claim for unfair dismissal, on the other hand. The problems that this can give rise to are summarised in Harvey at tab N 1054 where the Editor deals with the matter, and refers of course, to the authority of Hairsine v Hull which makes clear that there is no right to statutory pay if an employee takes time off without permission for Union activities, and then the Editor goes on to say:

"... he might be able to complain that the employer had unreasonably refused to allow him time off (even though the employee had taken it anyway), and in that event he could have a declaration and money compensation if - and this is the problem - the Tribunal thought it just and equitable.

All in all, the employee would risk losing everything and gaining nothing by taking time off without permission. If the employer refuses time off, the employee is best advised to stay at work and complain to an industrial tribunal instead."

That shows the difficulty in the way of this Appellant in claiming compensation for breach of s.168 on the part of the employer. We consider it is arguable that the Tribunal should have dealt specifically with this head of claim.

Additionally, we take the view that the fact that the Industrial Tribunal do not appear to have had their eye completely on the ball in this regard relating to the Appellant's claim for compensation under s.172, might give rise to a successful argument that it should have affected their view on contribution.

Thus, there seem to us to be two arguable points - and they only have to be arguable - which can be taken on appeal. One is the arguable point that the Appellant was entitled to a declaration and compensation under s.172 in respect of the employer's failure unreasonably to allow him time off and compensation on that basis, and the second point is whether that should have been a factor which the Industrial Tribunal should have taken into account when they were deciding what the proper contribution was in relation to the degree of fault on the part of Mr Gambone in relation to his dismissal for misconduct in taking the time off in defiance of the employers' refusal to allow him such time off.

For those reasons, which I thought best to put just into the form of a short judgment so it can be read by the full Tribunal when they deal with the matter, rather than try and complete them on the back of a form, in our judgment here this matter should proceed to a full hearing but we do sound this clear warning note to Mr Gambone, that there are very great difficulties that lie in front of him and many of the grounds of appeal which he has sought to put forward are doomed to failure.