Fire Brigade Union v Knowles & Anor [1995] UKEAT 672_94_0812

EAT
Fire Brigade Union v Knowles & Anor
[1995] UKEAT 672_94_0812 · 1995-11-20
For the Appellant MS LAURA COX Q.C.

Messrs Robin Thompson & Partners

Solicitors

Congress House

65 Russell Street

London WC1B 3LW

For the Respondents MR JEREMY McMULLEN Q.C. (who did not appear below)

and

MR J GAVAGHAN

Free Representation Unit

49/51 Bedford Row

London WC1R 4LR

MR JUSTICE KEENE : This appeal raises a point on the meaning of the words "a strike or other industrial action" in the Trade Union and Labour Relations (Consolidation) Act 1992 , Section 65(2)(a), which we shall call "the Act".It arises from two consolidated claims brought under that Section by the present Respondents, claiming that they had been unjustifiably disciplined by the present Appellant, the Fire Brigades Union, of which they had been members. The unjustifiable discipline of which they complained was their expulsion from that Union. An agreed preliminary point came before an Industrial Tribunal at London (South) on 20th October 1993 in the following terms:
"... whether or not the [ Fire Brigades Union ] policy in accordance with the National Agreement of 1977 of opposing a system of whole-time fire fighters being employed in addition on retained fire fighting contracts, constitutes industrial action within the meaning of that phrase in Section 65(2)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992."
That question was answered affirmatively in favour of Mr Knowles and Mr Johnson by the Industrial Tribunal. The Union now appeals against that decision. There is also a cross-appeal to which we will come later.By virtue of Section 64 of the Act, an individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union, and amongst other things an individual is "disciplined" if a determination is made that he should be expelled from the union. Section 65 of the Act, in so far as relevant in the present case, provides as follows:
"(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is - (a) conduct to which this section applies, or (b) something which is believed by the union to amount to such conduct;
but subject to subsection (6) (cases of bad faith in relation to assertion of wrongdoing).

(2) This section applies to conduct which consists in -

(a) failing to participate in or support a strike or other industrial action (whether by members of the union or by others), or indicating opposition to or a lack of support for such action; ..."The word "strike" is defined by Section 246 of the Act as meaning "any concerted stoppage of work", but the phrase "other industrial action" is not defined in the Act.The facts as established by the Industrial Tribunal were as follows. The Respondents were employees of Shropshire County Council in the Fire Brigade maintained by that local authority. They had also been members of the Appellant union. At one time they had worked at Telford at a fire station called Tweedale Fire Station. That fire station was a station known as a maintained station, which meant that it was manned by full-time fire fighters between 9 a.m. and 6 p.m. each day, and then between 6 p.m. and 9 a.m. the next morning it was manned by retained fire fighters. Those retained fire fighters were not in full-time employment with the fire brigade, but were paid a fee each year to be ready and on standby to be called out for fires as and when required. They received an extra fee for each fire to which they were summoned.In July 1990 it was decided that Tweedale Fire Station would be reduced to a one pump retained station, and the Respondents were transferred initially to a fire station at Wellington. They were then approached to enrol also as retained fire fighters at Tweedale Fire Station and were appointed as retained fire fighters in April 1991.However, this enrolment as retained fire fighters was contrary to the policy of the National Joint Council, a body composed of representatives of the employers and unions nationally, and contrary also to the policy of the Appellant union. After disciplinary hearings the two Respondents were expelled from the union because they had acted in a manner contrary to the decision of the National Joint Council and contrary to the rules of the union. Rule 26 of Appellant's rules deals with Internal Union Discipline and provides that "a member of the union commits a disciplinary offence if that member: (g) acts contrary to or fails to carry out the policies of the union."Evidence was given before the Industrial Tribunal by Mr Cameron, the general secretary of the union, that the union was opposed to a policy of full-time fire fighters being also retained fire fighters mainly on the grounds of safety. The union view was that if a fire fighter was called out to a fire as a retained fire fighter during a period between two night shifts, he might not obtain enough sleep to be able properly to perform his duties. In 1977 the employers agreed at the Natational Joint Council that this practice should stop. In addition, the union had banned the practice unilaterally. The Industrial Tribunal found that:
"... the taking on of retained duties by a full-time fire fighter is contrary to the decisions of the National Joint Council and also contrary to the express policy of the union. As Mr Cameron explained in evidence, if a local authority steps out of line in this fashion, the only action which the [ Union ] can take is to endeavour to resolve the matter by negotiations with that particular local authority or to raise the matter at a National Joint Conference, and ask the employers side of the Conference to see that the local authority is brought into line."
The Industrial Tribunal also noted that the contract of employment of each of the Respondents was with Shropshire County Council and:
"... that in the last resort and if matters could not be resolved by negotiation the [ Union's ] action would be against Shropshire County Council."
The Tribunal also observed that if at any stage in the future the employers's side of the National Joint Council sought to introduce the practice of full-time fire fighters being also retained fire fighters, they would meet with opposition from the union. This opposition, said the Tribunal, might if negotiations failed give rise to action by the union either generally or against specific local authorities which adopted the practice.The issue as defined by the Industrial Tribunal was whether the action of the Fire Brigades Union in opposing full-time fire fighters being employed also on retained fire fighting contracts amounted to "other industrial action" within the meaning of Section 65(2)(a), it not being suggested that the action amounted to a strike. After referring to a number of authorities which had been cited to it, the Tribunal said this:
"Now the action here is that the Joint Council of Employers and Employees has forbidden this practice and the [ union ] has reinforced this joint prohibition by an instruction to its members not to engage in this sort of conduct. A local authority which adopted or attempted to adopt this policy, would according to Mr Cameron be subjected to pressure from the union to alter its policy. It does appear that the pressure has so far merely been an attempt by the union to persuade local authorities not to engage in it. There have not been even as yet any threats that if a local authority does not fall into line and comply with the expressed joint agreement, that there will be further action taken against it by its' employees on the instructions of the [Union]. The Respondents [ Union ] probably hope that as it is a joint agreement they can achieve a result by pressure put on the employers' side through the Joint Council. The fact remains, however, that the policy of the union, although we heard no evidence as to whether it might financially inconvenience the local authorities, certainly prevents the local authorities from carrying out the reorganisation of the fire service run by them, in the manner in which they would wish to do it, namely by the fulltime employed fire fighters being retained fire fighters when they are not on duty as fulltime fire fighters. The policy must therefore, at the very least cause inconvenience to the local authority even if it does not involve them in any expense. It would however certainly seem to impose on the local authority some fetter on the way in which they would wish to perform their statutory duty and could cause problems to them in the performance of the statutory duty. ... The [ Union ] have indicated to their members their intention to enforce the Council Agreements by the adoption of those agreements as Union policy and this brings pressure to bear on the employers who are met in the main with a refusal by the [ Union ] members to accept those duties when offered them. This is our view amounts to industrial action, even though the [ Union ] might not have gone so far as to threaten industrial action in support of their policy, but only attempted to deal with the matter by way of persuasion. The point as we see it is that the employer when considering how to organise the services which he provides, has to look over his shoulder to see whether his proposals do not conflict with the settled policy of the [ Union ]. He is inhibited in what he wishes to do, by that settled policy."
On that basis the Industrial Tribunal found that the present Respondents succeeded on the preliminary issue. That is now challenged before us by the Appellant on a number of grounds. It is submitted that the conclusion reached by the Tribunal that the union had taken industrial action within the meaning of Section 65(2)(a) was not open to it on the evidence before it; alternatively that the Tribunal has given that phrase a meaning which it cannot bear. It is said that there was no evidence on the nature of the problems caused to an employer by the union's policy and that the Tribunal recognised that the union's actions towards the employer had only been by way of negotiation up to the time in question. Miss Cox also emphasises that insofar as the union's policy was similar to a ban, it could nonetheless be distinguished from a conventional over-time ban in that this restriction had nothing to do with the respondents' existing employment but only with the acceptance or otherwise of additional contracts of employment. She makes the point also that the part of the Act within which Section 62 appears contains a large number of provisions dealing with the need for a ballot amongst union members before "industrial action" is taken and dealing with the somewhat elaborate procedures to be adopted in relation to such ballots. She submits that it would be bizarre, were a trade union to have to go through those elaborate procedures before it could adopt a policy such as the present one under examination. In reliance on this Tribunal's decision in Midland Plastics v Till [1983] ICR 118 she submits that a threat to take industrial action does not amount to taking part in a strike or "other industrial action", even though it is something which is clearly putting pressure on an employer for the purpose of wage negotiations.For the Respondents Mr McMullen contends that the Industrial Tribunal's decision that the Appellant's activities amounted to "other industrial action" is a question of fact and not law, and is therefore not open to challenge before this Appellate Tribunal. It is argued that the finding of the Industrial Tribunal can only be successfully challenged on the basis that it is perverse. He draws attention to various references in the documentation to show that there was evidence about there being effects on the employers of the union's policy. As to what "other industrial action" means, it is submitted on behalf of the Respondents that the exercising of pressure on employers together with some inhibition on their freedom of action would be enough to constitute such "other industrial action".It is of course right that this Appeal Tribunal can only overturn an Industrial Tribunal's decision where the latter has made an error of law. Moreover, there are several authorities which establish that the issue of whether someone is "taking part in a strike or other industrial action" raises a question of fact and not one of law: see in particular the Court of Appeal decision in Coates and Venables v Modern Methods & Materials Ltd [1982] ICR 763 . That decision was followed by this Tribunal in Lewis and Britton v E Mason & Sons [1994] IRLR 4 . Nonetheless, that does not mean that an Industrial Tribunal has an unfettered discretion to characterise whatever it chooses as "other industrial action". If there is no evidence for the Tribunal's conclusion or if it arrives at its conclusion as the result of applying the wrong test or adopting the wrong approach to the issue, then a matter of law arises. In one of the decisions cited to us by the Respondents, Glenrose (Fish Merchants) Ltd v Mr C Chapman (Unreported, but dated 11th December 1990, reference EAT/245/89) this Tribunal examined a number of the decided cases dealing with the meaning of "other industrial action" in cases of unfair dismissal arising under Section 62 of the Employment Protection (Consolidation) Act 1978 , which we shall call the "1978 Act". Delivering the judgment of the Tribunal, Wood J (President) set out the principles to be gleaned from the decided cases. Insofar as they are relevant to the present proceedings, those were as follows:
"(a) For the words "other industrial action" to apply there need be no breach of contract. (b) The action is likely to be the application of pressure. In order to seek some advantage - not necessarily wages (installation of new machinery Thompson v Eaton Ltd [1976] ICR 336 ). (g) Provided that the tribunal does not err in principle the issue is one of fact."
We do not accept that there was no evidence on which the Industrial Tribunal could find that there was some inconvenience to or inhibition on the local authority when acting in its capacity as a fire authority. None is expressly referred to in the decision of the Tribunal, but it is well established that no Tribunal is expected to refer in its decision to all the evidence upon which it relies. Our attention has been drawn to some of the documentary evidence before the Industrial Tribunal which would support the finding that problems were caused for a local authority by the union's policy. In any event, a challenge on the basis of "no evidence" cannot be established in the absence of the Chairman's Notes of Evidence put before the Tribunal, and in the present case no attempt has been made to obtain those Notes.On the issue of whether the Tribunal adopted the correct approach to the meaning of "other industrial action", our attention has been drawn to a number of authorities. Most of them, like the Glenrose (Fish Merchants) Ltd case, concern the meaning of the phrase in Section 62 of the 1978 Act on claims for unfair dismissal, where the issue of taking part in "other industrial action" went to the jurisdiction of the Industrial Tribunal. No authority directly on the meaning of the phrase when used in the present statutory context has been referred to in argument before us. Nonetheless, we take the view that some assistance can be derived from the unfair dismissal cases, so long as it is remembered that the statutory context is different. In particular, it must be remembered that if something amounts to "other industrial action" under Section 65 of the 1992 Act, then it will often be necessary to hold a ballot in respect of such action, satisfying the requirements of Sections 227 to 232 of the Act. Those sections require, inter alia , separate workplace ballots, voting papers which indicate that members taking part in a strike or other industrial action may be in breach of their contract of employment, and secrecy of voting.The first of the unfair dismissal cases cited to us was Rasool v Hepworth Pipe Co. Ltd [1980] ICR 494 . In that case employees had attended a mass meeting held at their factory during working hours in order to obtain the views of the workforce as to wage negotiations. The Industrial Tribunal had found that the purpose of the mass meeting was not to put pressure on the employers, but to obtain the views of the employees. For that reason the Tribunal had concluded that the action fell short of "other industrial action" within Section 7(1)(b) of Schedule 1 of the Trade Union and Labour Relations Act 1974 , the predecessor of Section 62 of the 1978 Act. Their decision was endorsed by the Employment Appeal Tribunal, even though it is clear that the action had a disruptive effect on the employers's business. At page 509 Waterhouse J giving the judgment of the E.A.T., said:
"Nevertheless, in our judgment, attendance at an unauthorised meeting for the purpose indicated by the majority of the tribunal in the instant case falls short of "other industrial action." As the majority of the tribunal found, it is more properly regarded as trade union activity, even though a degree of disruption of the manufacturing process resulted."
In the case of Power Packing Casemakers Limited v Faust [1983] ICR 292 , an overtime ban in connection with wage negotiations led to three employees refusing to work overtime and to their subsequent dismissal. The Industrial Tribunal had found that the overtime ban was in connection with wage negotiations and was being used as a weapon therein. The Court of Appeal held that action such as the overtime ban could amount to "other industrial action" within the meaning of Section 62 of the 1978 Act, even though no breach of contract was involved. The leading judgment was given by Stephenson LJ, who emphasised the purpose of the refusal to work overtime. Referring to the employees's argument that a breach of contract was required before there could be "industrial action", he said:
"I would agree that if he refuses because he has a private commitment to visit a sick friend, or a personal preference for a football match, he is not taking industrial action. But that is not this case. If he refuses because he and others who refuse with him hope to extract an increase of wages out of his employers because their business will be disrupted if they do not grant it, that continued application of pressure is industrial action in the common sense of the words. I do not feel able to say any more about that argument of Mr Jones that that is not the natural meaning of "industrial action". And when the words come at the end of the phrase "taking part in a strike or other industrial action" they seem to me to cover even more clearly a refusal used as a bargaining weapon, whether it is a breach of contract or not."
In another decision dealing with the meaning of the phrase in Section 62 of the 1978 Act, Midland Plastics v Till (ante) , four employees were dismissed after a letter had been given to their works manager, stating that if wage demands were not met in full, then there would be industrial action at 11 a.m.. The employees were dismissed before 11 a.m.. Both the Industrial Tribunal and this Appeal Tribunal took the view that the threat to take industrial action did not amount to taking part in a strike or "other industrial action". Browne-Wilkinson J in the course of the judgment of the Appeal Tribunal said this:
"We cannot accept the view of the chairman that because the threat to take industrial action imposed pressure on the employers, such threat itself constituted the taking of industrial action.
...Unfortunately a substantial factor in industrial relations negotiations in this country is a display of power by one side in response to which the other side either does or does not yield to the wishes of the person displaying such power. The actual taking of industrial action is the last stage and is quite distinct from the stage at which the threat of it is being used as a negotiating weapon. Throughout the period of a strike notice what is bearing upon the employer is the risk to his business. We can see no distinction between what occurred in this case and the ordinary strike notice. In neither case has the matter matured into taking part in industrial action."It is clear that in that particular case the Appeal Tribunal did not regard the imposition of pressure on an employer as being sufficient to amount to the taking of industrial action. We have referred earlier to the decision of this Appeal Tribunal in the Glenrose (Fish Merchants) Limited case where it was said that:
"the action is likely to be the application of pressure. In order to seek some advantage."
Those two decision are not necessarily in conflict. It may well be that the existence of pressure to seek an industrial advantage is a necessary condition for something to qualify as "other industrial action". That is a long way from saying that the existence of such pressure by itself is sufficient to bring the circumstances within the concept of "other industrial action".Finally, we have derived some assistance from a passage in the speech of Lord Templeman in Miles v Wakefield Metropolitan District Council [1987] ICR 369 . At page 389A he said:
"... Industrial action involves a worker, in conjunction with all or some of his fellow workers, declining to work or declining to work efficiently, in each case with the object of harming the employer so that the employer will feel obliged to increase wages or improve conditions of work or meet the other requirements put forward by the workers' representatives. The form of industrial action which consists of declining to work is a strike. The form of industrial action which consists of declining to work efficiently has many manifestations including the "go slow" and the refusal by the plaintiff to carry out some of his functions on Saturday."
With those decisions in mind, we look at the decision of the Industrial Tribunal in the present case. The Appellant emphasises that the restriction on full-time firemen taking up additional duties as retained fireman was simply a policy of the union. We do not find that argument persuasive. The policy amounted to a ban on such actions by its members, as was recognised by the union's general secretary. On the other hand, as Mr McMullen has recognised, the Industrial Tribunal reached its decision on the basis that something which put pressure on an employer, and which as a result inhibited that employer in the way in which he acted, necessarily amounted to "other industrial action," irrespective of the purpose of the action. The Tribunal recognised that there had been as yet no threats directed against a local authority employer and the Tribunal noted that the union might not have gone so far "as to threaten industrial action in support of their policy". They appeared to think that it was sufficient that the employer when considering how to organise the services which he provided had to look over his shoulder to see whether his proposals conflicted or not with the union's policy. Pressure plus inhibition seemed to be sufficient in their judgment.We take the view that that is the wrong approach. Not all things which seek to put pressure on an employer will automatically and ipso facto amount to industrial action, even though the employer may feel himself inhibited as a result of the pressure. The lay members of this Appeal Tribunal emphasise that if the Industrial Tribunal's approach were correct, it would lead to many negotiating sessions between employers and unions amounting to "other industrial action", because those negotiations regularly involve the application of pressure on employers by the union side threatening to take strike action or some other form of action and the employers' freedom of action is often constrained by the knowledge of such threats. We note also that the test applied by the Industrial Tribunal in this case conflicts with the decision in Midland Plastics v Till ( ante ), where there was a clear threat of a strike or other industrial action expressly accepted as imposing pressure on the employers.Not every action which involves pressure on a employer together with some effect on that employer's freedom of action will constitute "other industrial action". There must be some action directed against the employer with the object of obtaining some advantage for the employees. It is to be observed that several of the cases to which we have referred have emphasised the need to have regard to the purpose of the activity in question. Thus, when Lord Templeman referred in the Miles case to a worker declining to work he added the words "with the object of harming the employer so that the employer will feel obliged to increase wages or improve conditions of work or meet the other requirements put forward by the worker's representatives." In the Glenrose (Fish Merchants) Limited case, already referred to, the E.A.T. said that "other industrial action" was likely to be the application of pressure "in order to seek some advantage." In our view , that is a necessary characteristic of such action. In the present case, the Industrial Tribunal appears to have accepted that the ban on combining fulltime and retained duties was imposed for safety reasons. There is no suggestion that it was imposed in order to enhance the union's bargaining position when the time came for negotiations on wages or conditions. It seems that there was no ulterior industrial objective to the restriction contained in the union's policy.Moreover, it is difficult to see how action which does not affect the performance of an employee's duties towards his employer in his existing job can constitute industrial action. The Appellant union was, on the facts found, not seeking by its ban to affect or influence the way in which its members performed their tasks in their existing employment as full-time firemen. This can be appreciated if one considers what the position would have been, had the Respondents, full-time firemen employed by Shropshire County Council, been offered additional contracts as retained firemen not by that same fire authority but by a neighbouring authority such as Staffordshire County Council. The policy ban might well have had an effect on the latter authority's performance of its functions; it could have had no effect on the performance of its functions by the existing employer, Shropshire County Council. This perhaps emphasises the Tribunal's comment that there had not as yet been any threat of industrial action by the union against the employer.We have concluded that the Industrial Tribunal applied the wrong test when asking itself whether on the facts the ban amounted to "other industrial action". That is a proper basis for intervention by this Appeal Tribunal. Had it adopted the proper approach, it could not have found that there was in this case "other industrial action" for the reasons we have indicated. The appeal will therefore be allowed.We turn to the Respondents' cross-appeal. It is contended that they were wrongly refused a postponement of the Industrial Tribunal hearing. Mr McMullen says that they sought such a postponement so that they might have the opportunity to call evidence from the employers. This evidence would, it is said, have gone to the effect of the union's policy on the employers.The Industrial Tribunal rejected the application for a postponement. In a letter dated April 1995, the Regional Secretary of the Tribunals gives the reason for refusal as having been that the Tribunal took the view that it only needed to hear evidence as to the action of the union "as the function of the Tribunal was to make findings whether the action of the Union could be other industrial action." But it is also said that counsel for the then applicants elected not to call either of the applicants themselves.We have been troubled by that reason for refusal, since it could well be that witnesses from the employers could give relevant evidence. However, it does not appear that the Respondents had any witness whom they knew that they wanted to call; it was rather a case of wanting to investigate the possibility, as it has been explained to us. Moreover, the potential evidence was expected to go to show that there was an inhibitive effect on the employer as a result of the union's policy. In the event, that was a proposition which the Industrial Tribunal accepted and which we have held could properly be accepted.In those circumstances, whatever the circumstances of the Tribunal's refusal, the evidence which it was hoped might be produced would not have led to a different result before the Tribunal or before this Appeal Tribunal. We are, therefore, not prepared to send this matter back to the Industrial Tribunal, as is sought by the cross-appeal, for further evidence to be called. For the sake of completeness, we note that no summaries or draft proofs of such further evidence have been put before us.The appeal is therefore allowed and the cross-appeal dismissed. The preliminary issue in the case is determined in favour of the Appellant: its policy referred to in the preliminary issue does not constitute "industrial action" within the meaning of Section 65(2)(a) of the Act.Leave to appeal to the Court of Appeal is granted.