Hulse & Anor v E Hillier & Son (Engineering) Ltd & Anor [1995] UKEAT 273_94_1701

EAT
Hulse & Anor v E Hillier & Son (Engineering) Ltd & Anor
[1995] UKEAT 273_94_1701 · 1995-01-17
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the Industrial Tribunal held at Reading on 9 and 17 December 1993. For full reasons notified to the parties on 8 February 1994, the Tribunal gave their unanimous decision on a preliminary point which had arisen in applications for unfair dismissal presented to the Tribunal by Mr Brian Hulse on 6 March 1993 and by Mr Simon Lee on 12 February 1993.The background to the claims of unfair dismissal is that Mr Lee was employed by the Second Respondent, Engineering Business Services Ltd as a technical customer liaison engineer; that is a company in the group of the First Respondent, E Hillier & Sons (Engineering) Plc. He complained that he had been unfairly dismissed from employment which he had held from 25 July 1983. That dismissal took place on 7 December 1992. He complained that he had been dismissed along with other employees on that date for participating in official strike action and that, since that date, some of those dismissed while taking part in the industrial action had been re-instated within 3 months of their dismissal.A similar complaint was made by Mr Brian Hulse in his Originating Application. He had been employed since 1985. He complained he had been unfairly dismissed in December 1992 for taking part in industrial action against the Company. Forty members and staff were sacked. Three days later the Company re-employed a sacked member of the staff.Mr Hulse was employed by a different Company in the same group. That Company was the Third Respondent, Electronic Products Ltd. Another employee of that Company was Mr Rogers who, for reasons appearing later features prominently in the decision of the Industrial Tribunal and on this appeal.The response to the complaints was that there was no unfair dismissal; both employees were dismissed for breach of contract in taking part in industrial action and, as regards the allegation of re-employment of other persons within three months, the Respondents put in identical defence. They denied re-employment of any persons who were dismissed for taking part in industrial action on 7 December. Any persons who were dismissed on that date, but who subsequently indicated that they were not taking part in industrial action, were offered the opportunity of appealing against the dismissal and, in two cases, appeals have been allowed.The Application and the Notice of Appearance identify the issue which gave rise to the preliminary point on which the Industrial Tribunal reached the decision under appeal. In order to understand the preliminary point we will refer to section 238 of the Trade Union & Labour Relations (Consolidation) Act 1992 which deals with dismissals in connection with industrial action. The material parts of the section read as follows:"(1) This section applies in relation to an employee who has a right to complain of unfair dismissal (the "complainant") and who claims to have been unfairly dismissed, where at the date of the dismissal -(a) ...(b) the complainant was taking part in a strike or other industrial action.(2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -(a) that one or more relevant employees of the same employer have not been dismissed, or(b) that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement.(3) For this purpose "relevant employees" means -(a) ...(b) in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action."There was no dispute on the facts that Mr Lee and Mr Hulse had, with others, taken part in a strike on 7 December 1992. There was no dispute that all the employees who had taken part were summarily dismissed on 7 December 1992. The dispute concerned the position of two other employees, Mr Pragnell and Mr Rogers and as to whether they were "relevant employees" within the provisions of sections 238 (2)(b) and 238 (3)(b) of the 1992 Act. The position with Mr Rogers is that he was reinstated on 11 December 1992 and that neither Mr Lee nor Mr Hulse were offered re-employment. The preliminary question before the Industrial Tribunal was, therefore, whether Mr Pragnell or Mr Rogers were relevant employees. That question turned on whether they had taken part in the strike or other industrial action on 7 December 1992. If they had not, they were not relevant employees.The Tribunal unanimously decided that neither Mr Pragnell nor Mr Rogers was a relevant employee within those provisions, in that neither was a relevant employee, who at the date of their dismissal in relation to a strike or other industrial action, were taking part in the action. It is not necessary to consider large parts of the Tribunal's decision which are concerned with the position of Mr Pragnell. There is no appeal against that part of the decision. In view of concessions made by Mr Randall, on behalf of the Appellants, three of the four grounds of appeal as stated in the Notice of Appeal dated 16 March 1994 have also fallen away. So the appeal is confined to a relatively narrow point.The Notice of Appeal in its first ground, the only surviving one, states that the appeal is brought on this ground:
"(1) The Industrial Tribunal erred in law in that, having found (at paragraphs 22, 23 and 27) that Mr. Rogers had attended at the picket line for 30 minutes and had expressed his support for the strike it failed to find that he had taken part in the action. Further, in so doing the Industrial Tribunal acted perversely, contrary to the evidence that was before it and contrary to its own findings of fact."
The argument of perversity has not been pressed. The matter has been put by Mr Randall as a straight question of the correct construction of section 238. He says that the Tribunal, in the light of the decision of the Court of Appeal in Coates v Modern Methods & Materials Ltd [1982] ICR 763, had misconstrued the section. In those circumstances the matter ought to be remitted to the Industrial Tribunal for a fresh hearing at which the Tribunal can apply the correct construction.In order to understand the point that is raised on construction it is necessary to refer briefly to the findings that the Tribunal found in relation to Mr Rogers. They are at paragraph 21:
"We now deal with the case of Mr Rogers. Mr Rogers, by common consent, had already booked a holiday for 7 December. When the strike was called he checked with management to see whether or not the holiday was still available to him. He was told that it was up to him. He chose to take the holiday.
22 On 7 December he left his home early in order to collect some turkeys for Christmas hampers. He went to the factory on his motorcycle and parked nearby the entrance before going in ostensibly to collect his tools. His recollection was that he did not actually collect tools. He kept his motorcycle head gear with him. When he left the premises he said to Mr Moses, who was there on behalf of management, that he would see him tomorrow. Whilst leaving he spoke with the strikers saying that he supported them and then went off after about 30 minutes.23 In support of that evidence we have taken into account the version of Mr Moses about whose evidence there was very little dispute and the evidence of Mr Fullick, both of whom have provided diaries which record these essential facts. We find that Mr Rogers chose to take his arranged holiday rather than go on strike. We find also that his calling at his place of work was genuinely to collect tools even though, for some reason, he chose not to. It is certainly the case that he did enter his place of employment and actually went to his work bench. We are satisfied that he was holding and/or wearing his head gear in preparing leaving his place of work on his motorcycle and that the conversations he had with Mr Moses indicating that he was to return to work after his day's holiday, were genuine indications of his intentions. Finally we find that the period that he remained with the strikers outside his place of work and the circumstances in which he stayed and had conversations with them even if he was indicating a general support, were not such as to associate himself with the strikers in any way. We find those facts based essentially on the unchallenged evidence which established them."The Tribunal referred to two authorities which Mr Randall has also cited - Bolton Roadways v Edwards [1987] IRLR 392 and also to the Coates case already cited. They referred to the submission of the union representative, Mr Stoddart. He submitted that Mr Rogers was involved by association and that he was participating in the strike or industrial action. In dealing with that submission the Tribunal said:
"We direct ourselves that firstly, whether an employee is "taking part" is a question of fact for a Tribunal. Secondly, that the test is objective. We look at the employee's acts or omissions in coming to our conclusions. Thirdly, that an employee's motives are irrelevant and that an employee who is on holiday or sick can still be found to be taking part in a strike."
They dealt with the case of Mr Pragnell which is no longer relevant. They said this as regards Mr Rogers:
"27 So far as Mr Rogers is concerned, we find that he positively chose to take a holiday and not join the strike and he informed Mr Moses that he would be in work the day after his holiday and that his presence on the picket line was transitory, for a relatively short time and given his state of protective head wear was indicative of his true purpose and inconsistent with remaining there in participation in a strike."
Those are the crucial parts of the Tribunal's findings of fact and their conclusions reached by applying section 238 to the facts of the case - Where is the error of law in that decision?Mr Randall's submission was that there was an error of law in not applying to the facts of the case the construction of section 238 by the majority of the Court of Appeal in the case of Coates . There is one particular passage on which Mr Randall heavily relied, that is the judgment of Stephenson LJ at page 777:
"I have come to the conclusion that participation in a strike must be judged by what the employee does and not by what he thinks or why he does it. If he stops work when his workmates come out on strike and does not say or do anything to make plain his disagreement, or which could amount to a refusal to join them, he takes part in their strike. [The next passage is heavily relied on by Mr Randall] The line between unwilling participation and not taking part may be difficult to draw, but those who stay away from work with the strikers without protest for whatever reason are to be regarded as having crossed that line to take part in the strike. In the field of industrial action those who are not openly against it are presumably for it. This seems to be the thinking behind the industrial tribunal's decision. If the words in question are capable of bearing that meaning, they are capable of being applied to Mrs Leith's actions on the morning of February 12, 1980, though her time outside the factory gates with the strikers was short and her reason for not entering the factory was accepted. [Stephenson LJ concluded his judgment with these words] In my judgment a reasonable tribunal could give that meaning to the statutory words and could apply them to Mrs Leith. The industrial tribunal did not, therefore, go wrong in law and it was the majority of the appeal tribunal who did. I would accordingly allow the appeal, set aside the decision of the Employment Appeal Tribunal and restore the decision of the industrial tribunal."
Relying on that passage in particular Mr Randall's legal proposition was that, on the true construction of section 238, everybody who is not present at work when the strike is going on, who is not performing duties, who has knowledge of the strike or proposed industrial action, and has not declared themselves openly against it, is taking part in it for the purposes of section 238. His case is that Mr Rogers knew of the strike; he was there for some period when the industrial action was going on; there was no evidence that he had ever openly declared himself against the strike and industrial action; in fact there was evidence that in the time when he was at the premises on 7 December he spoke with the strikers saying that he supported them. In those circumstances, the Tribunal had failed to apply the correct construction of section 238. That was an error of law which necessitated a remission of this matter to the Industrial Tribunal. He submitted in his Skeleton Argument, relying also on comments of Kerr LJ in the same case at page 782G-783E, that it was clear from the findings of fact made by the Industrial Tribunal Mr Rogers was not openly against the action; he had expressed his support and that evidence, taken as a whole, supported the conclusion that at least Mr Rogers was equivocal about the action. In the circumstances the tests laid down by Stephenson LJ and Kerr LJ were clearly satisfied. The only permissible option open to the Industrial Tribunal was to find that Mr Rogers was a "relevant employee" for the purposes of the section. Even if we were not prepared to go that far, we must at least allow the appeal on the basis that there was an error in law in the construction of the section and the matter ought to go back to the Industrial Tribunal.We are unable to accept those submissions. Mr Randall sought to reinforce them by reference to the two other cases - Bolton Roadways Ltd v Edwards and to a decision of the Employment Appeal Tribunal, Naylor v Orton & Smith Ltd [1983] ICR 665. In the last cited case Mr Randall relied particularly on the paragraph at 673D-674A of the decision in which critical comments were made in relation to the predecessor section (S.62) of the Employment Protection (Consolidation) Act 1978 .Rather than supporting Mr Randall's propositions we find that the decision in Naylor v Orton & Smith is against him on this appeal. In the judgment of the EAT it is stated at page 673A-B that the correct approach is as follows. Having reviewed in detail the judgments in the case of Coates Browne-Wilkinson J, in the judgment of the Tribunal, said:
"We therefore conclude that the Court of Appeal have decided that there can be no error of law by the industrial tribunal in making a decision under section 62 unless upon the evidence the industrial tribunal reached a conclusion which the words of the section could not reasonably bear. Following that decision of the Court of Appeal we must ask ourselves only the question:
"Was there evidence upon which the industrial tribunal could find that neither Mr. Terry nor Mr. Winmill nor Mrs. Hulcolm were taking part in industrial action, giving those words a meaning of which they are reasonably capable?"
Omitting the names of the relevant persons in that case and substituting the name of Mr Rogers, the question on this appeal is this - Was there evidence upon which the Industrial Tribunal could find that Mr Rogers was not taking part in industrial action, giving those words a meaning of which they are reasonably capable?In our view, the answer to that question is clear on the findings of fact made by the Tribunal. There was evidence on which they could find that Mr Rogers was not taking part in industrial action and therefore there is no error of law in this decision. We accept the submission made by Mr Wallington, on behalf of the Respondents, that the appeal is essentially against a question of fact. The question whether a person has taken part in industrial action under section 238 is a question of fact and degree for the Tribunal. It is for the Tribunal to find the primary facts and make what inferences they can legitimately draw from those primary findings of fact. There is no appeal against such a finding, or the conclusion, unless the Appellant can establish perversity or findings contrary to the uncontradicted evidence or unless the Appellants can show that there has been a misconstruction of section 238. In our view, the construction of section 238 advanced by Mr Randall on the basis of the Coates submission, is not the correct construction. The comments on which he seeks to rely in the judgment of Kerr LJ and Stephenson LJ are a construction of the section; they are comments on matters which are relevant factors in reaching the conclusions on the application of the provisions of section 238 to the facts of the case. There is no ground, in our view, for the view that on the correct construction of section 238 a Tribunal must, in every case , find that someone is participating in a strike or industrial action because, having knowledge of the strike, they have not declared themselves openly against it. The proposed construction amounts to writing into section 238 a further sub section, a "deeming" provision, which is not there.The law is clear, as laid down by the Court of Appeal and by the Employment Appeal Tribunal it is a question of fact and degree correctly formulated by Browne-Wilkinson J in Naylor . In answering that question we find that this Industrial Tribunal gave the words of the section a meaning of which they were reasonably capable and came to a conclusion they were entitled to reach on the evidence that Mr Rogers was not taking part in industrial action.In those circumstances it is not necessary to say anything further about other points raised.For all those reasons we shall dismiss the appeal. It has already been indicated to us by Mr Randall that he would wish to have leave to appeal. We have considered this matter in the light of the points which he has made. In his Skeleton Argument he sets out the grounds on which he would seek leave to appeal. He says in paragraph 8 of the Skeleton Argument that he would wish to go to the Court of Appeal for the construction of section 238 to be considered further on the following grounds:
"(a) the finding of the Industrial Tribunal is inconsistent with the test approved by the majority of the Court of Appeal in the COATEs case; (b) the reasoning of the Court of Appeal in COATES itself partially supports the contention that the phrase "taking part in a strike" is capable of a specific meaning; (c) the comments of Browne-Wilkinson P in NAYLOR v ORTON & SMITH LTD [1983] ICR 665 lend support for the contention that the issue requires further consideration; and (d) this view is further supported by the commentary in Harvey on Industrial Relations and Employment Law Vol 1 at D [2062] onwards."
We were provided with photo copies of paragraphs 2062 - 2065 of Harvey and have taken those into account. We have reached the conclusion that this is a matter on which Mr Randall should go to the Court of Appeal for leave if his clients wish to take this matter further. We therefore decline leave to appeal without calling on Mr Wallington to present any arguments on that point.For those reasons the appeal is dismissed. Leave to appeal is refused.Following the judgment we heard an application by Mr Wallington on behalf of the Respondents for an order for costs under Rule 34 of the Employment Appeal Tribunal Rules 1993 . He asked for costs which he said, if ordered, should not be enforced without the leave of the Court, on the grounds that there was no point of law raised by this appeal; the appeal had no hope of success. On the morning of the hearing, and only then, were three of the four grounds of the Notice of Appeal abandoned.Mr Randall, on behalf of the Appellants, opposed this. He submitted that the fact that an appeal is unsuccessful does not mean that it was unnecessary, improper, vexatious or unreasonable. He said his clients had behaved responsibly in relation to the matter. There had been no appeal in the case of Mr Pragnell. The perversity points were withdrawn. Time was not wasted in the Tribunal on pursuing matters unnecessarily. He said there was a point of construction raised which, even though we found against it, was one which it was proper to raise.We have considered the rival arguments. We have come to the conclusion that this is not a case for ordering costs under Rule 34, though we would repeat in this judgment the comments made during the course of argument that it is incumbent on parties and their advisers to seek to minimise the costs incurred on an appeal by deciding as early as possible in the appeal what points they are actually going to pursue at the hearing. The scattergun approach of throwing many points in the Notice of Appeal which are not pursued at the hearing can result in costs which could have been avoided. In the present case four points in the Notice of Appeal were dealt with in some detail by the Respondents' Counsel in the Skeleton Argument. His Skeleton Argument would have taken less time, been shorter and cost his clients less, if it had been known at an earlier stage that not all those grounds were pursued.We make those comments to be taken into account by parties and their legal advisers in preparations for an appeal. If a Notice of Appeal is put in as a matter of urgency and takes all the points so the matters are to be kept open until full consideration has been given, it is incumbent on the parties to review the situation earlier than the day before or morning of the appeal and, if they decide not to pursue the points, to inform the Respondent and this Tribunal as soon as possible of the points they are actually going to argue.No order as to costs.