Harrison v Kent County Council [1995] UKEAT 824_94_0802

EAT
Harrison v Kent County Council
[1995] UKEAT 824_94_0802 · 1995-02-08
MR JUSTICE MUMMERY (PRESIDENT) In the last 20 years Parliament has placed statutory limits on the right of an employer to refuse a person employment. Certain kinds of discrimination by employers in relation to access to employment have been made unlawful. For example, it is unlawful for an employer to discriminate, on the grounds of sex, in the arrangements he makes for the purpose of determining who should be offered employment by him or in the terms on which he offers employment or by refusing or deliberately omitting to offer employment: S.6, Sex Discrimination Act 1975. Discrimination by an employer on racial grounds in relation to employment is also unlawful: S.4, Race Relations Act 1976.This appeal is concerned with discrimination in access to employment on grounds related to trade union membership. By S.1 of the Employment Act 1990, now re-enacted in S.137 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992" Act), it was provided that -
"(1) It is unlawful to refuse a person employment - (a) because he is, or is not, a member of a trade union."
A person who is unlawfully refused employment has a right of complaint to an Industrial Tribunal. The complaint should be presented before the end of the period of three months beginning with the date of the conduct to which the complaint relates. Where the Industrial Tribunal finds that a complaint under S.137 is well-founded, it shall make a declaration to that effect and has a discretion, if it considers it just and equitable, to make an order requiring the employer to pay compensation to the complainant of such amount as the Tribunal may determine and may make a recommendation that the employer takes within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates: S.140. Compensation is assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings: S.140(2), 1992 Act. The provisions aim to achieve a balance between the competing rights of the employer to select his workforce and of a worker to associate (or not associate) in a union and to be protected from discrimination.We have been informed by counsel for the parties (Mr White for Mr Harrison and Mr Clarke for the Kent County Council) that this is the first time that the Employment Appeal Tribunal has had to construe the provisions of S.137. We are indebted to both counsel for their excellent arguments, conspicuous for their clarity and conciseness.

The Proceedings

The salient steps in the proceedings were as follows:-

(1) On 8th January 1994 Mr Colin Harrison presented an Originating Application to the Industrial Tribunal complaining that in October 1993 the Kent County Council had refused his application for employment as a Career Grade Social Worker on grounds to related to Trade Union membership. He had been employed by the Council between 1977 and 1991, latterly as a Senior Social Worker. In 1991 he left in order to work as a social worker in Nottingham. In August 1992 he went to work for the Local Authority in Greenwich as a social worker. In 1993 he applied for a job as a Career Grade Social Worker with the Council. On 29th October 1993 he received written notification of an earlier oral communication that he had not got the job. Mr Harrison complained that the reasons given by the Council for the refusal to employ him related to trade union membership.(2) On 10th February 1994 the Council gave notice that it resisted the application on the following grounds:-
"(1) The applicant applied for a post as a Career Grade Social Worker with the respondent. His application was refused because of the respondent's experience of him when he was an employee of the respondent. The respondent had found that the applicant had an uncooperative attitude and an anti-management style.
(2) The respondent recognises, among others, UNISON, the trade union to which the applicant belongs. The respondent is keen to maintain good industrial relations, and has a good working relationship with the trade unions which it recognises. Its approach to those trade unions is supportive and cooperative.(3) It is denied that Mr Harrison's application for the post of Career Grade Social Worker was refused because of his trade union membership."(3) On 18th and 19th July 1994, the Industrial Tribunal held at Ashford heard Mr Harrison's complaint and, for Reasons notified to the parties on 27th July 1994, dismissed it.(4) On 24th August 1994 Mr Harrison served a notice of appeal against the decision. The grounds of the appeal are that the Industrial Tribunal erred in law in misdirecting itself as to the proper construction of S.137(1)(a) of the 1992 Act and in adopting an unduly narrow, restrictive and incorrect approach by concluding that the section refers only to trade union membership , and not to trade union activities .(5) At the hearing of the appeal by this Tribunal on 8th February 1995 it was common ground that, if Mr Harrison succeeded in his appeal on the ground that the Industrial Tribunal had misconstrued the statutory provisions, the case would have to be remitted for a rehearing by a differently constituted Industrial Tribunal.

The Decision of the Industrial Tribunal

As the ground of appeal is solely concerned with the construction of S.137(1)(a) of the 1992 Act, it is unnecessary to give a detailed account of the factual background to the claim set out in the extended reasons for the decision. It is, however, necessary to flesh out some of the facts in order to give life to the legal arguments on the legislative provisions.(1) The Tribunal correctly identified the issue as whether or not the Council denied Mr Harrison employment because of his trade union membership.(2) The essential facts of Mr Harrison's employment record were that he was employed by the Council as a Social Worker for 14 years from 1977. He was promoted to Senior Social Worker in 1989. There was never any dispute that he was professionally competent and caring. The only disciplinary record was of one oral warning, long since time expired, arising out of behaviour on a picket line. Throughout his employment he was an active member of NALGO (now merged in UNISON) and a shop-steward. He also occupied positions of prominence and responsibility at various times during his employment, as Chairman of the Shop-stewards' Committee and Publicity Officer for the Union branch covering the Council. During 1983/84 he was one of the leaders of a long and bitter dispute involving strike action. In his capacity as Chairman of the Shop-stewards' Committee he had a reputation as someone who negotiated strongly and forthrightly on behalf of his members. In particular, he had made it clear to his managers that there were many aspects of the policy and approach of the management of the Social Services Department to which he was opposed. However, in one stance when he argued against a decision of his line manager to refuse a payment to a particular family by appealing to his Area Director when his appeal was turned down, Mr Harrison accepted the decision without rancour. It was the view of Mr Harrison's managers that his disagreements, on occasion, represented his own personal and political philosophy and,while he was highly competent at the professional aspects of his job, he did not "fit" with the rest of the Department. Because of what they perceived to be his anti-management stance, he was an uncomfortable colleague in what has to be a team operation.(3) In 1991 Mr Harrison left the Council's employment for family reasons. He went to live and work in Nottingham, but was unable to sell his house, so he returned to live there and obtained a post as a Social Worker with the London Borough of Greenwich. During 1993 he made a number of applications for social work posts advertised by the Council, but was not shortlisted for interview. In July 1993 he applied for the post of a Career Grade Social Worker in the Maidstone West Team and was interviewed for that job in 1993. He heard nothing. He later saw that the post was re-advertised. He was informed at the beginning of October that the Council were unable to offer him the post. He pursued the question why he had been refused and eventually received a letter from the Council dated 29th October 1993 stating
"Your application has been carefully considered but due to our past experience of you as an employee when it was found that your confrontational and anti-management approach did not fit with the Kent culture we feel that there is an issue of personal "fitness" for the job. You have, undeniably, the necessary qualifications and experience but we will not be processing your application further."
(4) Over one-third of the employees in the Council's Social Services Department are trade union members and there are extensive joint consultation arrangements between the various parts of that department and the Union.(5) After setting out the rival submissions advanced by Mr Harrison's UNISON representative and by counsel for the Respondent Council, the Tribunal concluded (paragraph 14) that -
"... part of the reasons for the Council's refusal to employ Mr Harrison were ... the Council's doubts about his suitability and "fit" for the post for which he applied (or for any posts within the Social Services Department) arising out of his perceived confrontational and anti-managerial stance. ..."

The Tribunal added -

"... But we think that that is really putting it too blandly to be the totality of the Council's reasons, because the managers' perceptions of Mr Harrison's personality, and attitudes, and beliefs were absolutely conditioned by their view of him as a trade union activist and negotiator, particularly in regard to the strike, and in regard to his propagandist activities as publicity officer for the union. ..."

The Tribunal stated -

... We think it would be unrealistic if we did not draw the conclusion that a major part of the reasons for the Council's refusal to re-employ Mr Harrison was because of his past trade union activities."(6) In the light of that finding the Tribunal then asked the question whether the Council's refusal to re-employ Mr Harrison was because of his trade union membership and was therefore unlawful? The Tribunal did not think it was unlawful because they accepted the Council contention that S.137(1)(a)"refers only to trade union membership, and not to trade union activities, and that we are precluded from importing the words "or past trade union activities" into the section, because, if Parliament had meant that we should import such words, they would have made a provision in this section equivalent to the provisions in S.146 and S.152".They commented that trade union activities and trade union membership are not co-extensive. A trade union member need not be active. They accepted the Council's evidence that it was not antipathetic to trade unions and indeed goes out of its way to support them. They concluded that, had Mr Harrison simply been known as a trade union member they did not doubt that he would have been re-employed and added (paragraph 15)
"... But it was the manifestation of his attitude, which, we are satisfied, both within and without the scope of his trade union activities, was indeed anti-managerial and confrontational, that decided the Council not to re-employ him."
For all those reasons the Tribunal dismissed Mr Harrison's application.In doing so, did the Industrial Tribunal err in law in its construction of S.137(1)(a)?

The Authorities

Counsel were unable to cite any case on the construction of S.137(1)(a). They drew to our attention the statutory provisions protecting employees from dismissal and from action short of dismissal on grounds related to union membership or activities and to two decisions on those provisions.Section 152(1), formerly S.58(1) of the 1978 Act, is concerned with dismissal and provides that -
"(1) 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 - (a) was, or propose to become, a member of an independent trade union, or (b) had taken part, or propose to take part, in the activities of an independent trade union at an appropriate time, (c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused to propose to refuse, to become or remain a member."
Section 146(1) of the 1992 Act is concerned with action short of dismissal and provides -
"An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of - (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions."
It will be noted that both sections contain separate sub-paragraphs relating to union membership and to taking part in union activities. Section 137(1) contains no express reference to trade union activities. The Tribunal regarded that omission as significant. They thought that, if Parliament had intended past trade union activities to be covered by S.137, they would have made express provision equivalent to the provisions in S.146(1)(b) and S.152(1)(b). The Tribunal rejected the argument advanced on behalf of Mr Harrison that"Because trade union membership is a pre-condition of trade union activities, therefore, if you refuse to employ someone because, or partly because, of his trade union activities, you are in reality refusing to employ him because of his trade union membership." (Paragraph 15)Mr White, on behalf of Mr Harrison, submitted that the construction adopted by the Industrial Tribunal was unduly restrictive in its reliance on an "illusory" distinction between trade union membership and the ordinary incidents thereof. In support of that submission he cited two authorities. The first was a decision of the Employment Appeal Tribunal on the provisions now contained in S.152(1)(a). In Discount Tobacco & Confectionery Ltd v. Armitage [1990] IRLR 15 the complaint was of unfair dismissal for the reason that the employee was a member of an independent trade union. The complainant made use of her union membership to enlist help in elucidating and attempting to negotiate the terms of her employment. The complainant was dismissed. The Industrial Tribunal reached the conclusion that her dismissal on grounds of membership of the union. The respondent employer attempted to draw a distinction between, on the one hand, membership of the union and, on the other hand, resorting to the services of a union officer to elucidate and negotiate terms of employment. It was argued on behalf of the employer that the latter did not or could not amount to evidence of membership of a trade union as a reason for dismissal.

Mr Justice Knox stated in paragraphs 13 and 14 of the judgment as follows:-

"We find ourselves unconvinced of that distinction. In our judgment, the activities of a trade union officer in negotiating and elucidating terms of employment is, to use a prayer book expression, the outward and visible manifestation of trade union membership. It is an incident of union membership which is, if not the primary one, at any rate, a very important one and we see no genuine distinction between membership of a union on the one hand and making use of the essential services of a union, on the other.
Were it not so, the scope of S.58(1)(a) [now S.152(1)(a) of the 1992 Act] would be reduced almost to vanishing point, since it would only be just the fact that a person was a member of a union, without regard to the consequences of that membership, that would be the subject matter of that statutory provision and, it seems to us, that to construe that paragraph so narrowly would really be to emasculate the provision altogether."That passage was regarded as "unquestionably correct" by Dillon LJ in his judgment in the Court of Appeal in Associated British Ports v. Palmer [1994] ICR 97 at p.102D . That case, now awaiting decision by the House of Lords, was concerned with the construction of the provisions in S.23(1)(a) of the 1978 Act (now contained in S.146(1)(a) of the 1992 Act) on action short of dismissal on grounds related to trade union membership or activities. Dillon LJ observed at p.101D that there was a question to be considered of what is involved in the concept in that section of "being a member of an independent union" and whether
"membership means no more than that a person has his name recorded in the union's register of members and holds a union membership card with the consequence that it is suggested ... "
that it is a legitimate standpoint for an employer to say to an employee:
"We have no objection to your being a member of a union, so long as you keep your membership card in your pocket unused and do not seek to make any use of your membership which could have any impact on us or our business."
Reference was then made to the decision in Discount Tobacco & Confectionery Ltd v. Armitage (supra) and to the passage in the judgment of Knox J already cited. On p.102 Dillon LJ said that that decision meant
"... at the least ... it is open to an industrial tribunal to hold that an employee has been dismissed for being a member of a union if he has been dismissed or penalised for invoking the assistance of the union in relation to his employment. To put it another way, in an appropriate case the tribunal of fact has power to be robust in its findings. ..."
On the basis of those judicial observations Mr White submitted that the approach of the Industrial Tribunal to the construction of S.137(1)(a) was contrary to the approach of the EAT and the Court of Appeal to similarly worded provisions in S.146(1)(a) and S.152(1)(a) of the same Act. The Tribunal had failed to give effect to the clear meaning of the statutory provisions indicated in those decisions.

Reference to Parliamentary Material

Mr White also submitted that if, contrary to his primary contention, the scope of protection afforded by S.137(1)(a) was uncertain or obscure, it was permissible for the EAT to have regard to statements made by a Government Minister during the committee stage of the passage of the provisions of S.137(1)(a) as originally introduced in the Employment Bill 1990. He argued that the Industrial Tribunal had adopted a construction which frustrated the intention of the legislature evidenced in the Parliamentary materials. It was decided by the House of Lords in Pepper v. Hart [1993] AC 593 at 640 B-C that the exclusionary rule relating to Parliamentary materials should be relaxed where(a) legislation is ambiguous or obscure or leads to an absurdity;(b) the material relied upon consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect, and(c) the statements relied upon are clear.For reasons stated later in this judgment we have reached the conclusion that reference to Parliamentary materials is not permissible in this case.

Submissions of the Council

Mr Clarke made the following submissions on behalf of the Council in support of his argument that there was no error of law in the Tribunal decision.(1) Section 137(1)(a) referred only to refusal of employment because a person is, or is not, a member of a union. Where an individual has been refused employment for a reason connected with his trade union activities that did not, of necessity, mean that he was refused employment because of his trade union membership. The fact that an employee reveals his personality or attitudes in the course of carrying out trade union activities does not mean that it is impermissible for the employer to use that information subsequently to deny him employment. For example, an individual may reveal his personality, whilst carrying out his trade union activities eg, that he has a short temper, lacks tact or is a poor public speaker. It would be absurd to suggest that that information was in a forbidden zone of reference by the employer in deciding whether or not to employ a job applicant.(2) It was accepted that there will be instances in which the fact that an individual has been refused a job because of his trade union activities will mean that, in effect, he was not given it because he was a trade union member. It was made clear that it was not the Council's contention that refusal of employment for reasons connected with trade union activities will never, when properly analysed, reveal that the decision was really based on a reason of trade union membership.(3) In this case the Tribunal had rightly rejected an automatic link between trade union activities and trade union membership and had carefully considered precisely what the Council had learnt about Mr Harrison from his trade union activities. The Tribunal considered whether or not the Council's reasoning, when properly analysed, amounted not to a consideration of the nature and quality of his activities but of his trade union membership. The Tribunal bore in mind the evidence as to the Social Services Department's attitude to trade unions generally, as a way of testing the evidence as to whether rejection was on the ground of trade union membership.As to the use of Parliamentary materials, Mr Clarke submitted that the Industrial Tribunal's approach to S.137(1)(a) was entirely consistent with the approach revealed in the House of Lords debate in Hansard and submitted that reference to Hansard would add nothing to the analysis of the relevant provisions.

Conclusion

We are unable to accept the submission of the Council that there was no error of law in the Tribunal's construction of S.137(1)(a). In our view, the Tribunal erred in law for the following reasons:-(1) In construing S.137(1)(a) the Tribunal compared it to the provisions in S.146 and S.152 of the 1992 Act and concluded that, as S.137(1)(a) only referred to trade union membership , it was not permissible for the Tribunal to have regard to past trade union activities in deciding whether a refusal of employment was unlawful. They had reached the conclusion, on the facts, that a major part of the reason for the Council's refusal to re-employ Mr Harrison was because of his past trade union activities. They rejected his claim because, on the construction of S.137(1)(a), trade union activities and trade union membership were two different things. Section 137(1)(a) only made it unlawful to have regard to membership of a trade union, as distinct from trade union activities. The Tribunal expressed the view that, if Mr Harrison had simply been known as a trade union member, he would have been re-employed. He was not re-employed because, in the view of the Tribunal, the Council had formed a view about his attitudes as manifested both "within and without" the scope of his trade union activities. They appear to have concluded that there was nothing in S.137(1)(a) which made it unlawful to refuse employment on the ground of trade union activities.(2) The Tribunal's construction of S.137(1) takes a narrower view of the conceptual limits of membership of a trade union than is expressed by the ordinary and natural meaning of the language of the section. The fallacy in the Tribunal's approach is to proceed, by analogy with S.146(1) and S.152(1), to draw a rigid distinction between, on the one hand, membership of a trade union and, on the other hand, taking part in the activities of a union. Although membership and activities are specified in separate sub-paragraphs of S.146(1) and S.152(1), it does not follow that they are self-contained, mutually exclusive categories or concepts. Trade union membership and trade union activities overlap. In this context a divorce of the fact of membership and the incidents of membership is illusory. We agree with the comment of Dillon LJ in Associated British Ports v. Palmer that membership of a union means more than the bare fact that a person's name has been entered in the register of members and that he holds a union membership card. Participation in the activities of a union is one of the ways in which membership of a union is manifested and the rights incident to it are realised. In our view, if a person is refused employment because he was or is a trade union activist or for a reason related to his union activities it is open to the Industrial Tribunal, under the provisions of S.137(1)(a), to conclude that he is refused employment because he is a member of the union. It will be a question of fact in each case for the tribunal to determine the reason for refusal to employ a person and whether that reason was impermissible because it related to union membership. We say nothing to deter the tribunal of fact, in an appropriate case, from being "robust in its findings".(3) The construction adopted by the Industrial Tribunal would have a consequence inconsistent with promoting the purpose of the provision. The purpose of S.137(1)(a) is to protect a person from being discriminated against in access to employment on grounds related to union membership. In reality, the persons most likely to be discriminated against are those who have been most active in membership. On the distinction drawn by the Industrial Tribunal between trade union membership and trade union activities, the more active the member, the weaker the protection. It is a construction which, in the words of Knox J. would "emasculate the provision altogether". We favour a purposive construction and a pragmatic approach.As we have reached the view that the construction of S.137(1)(a) is free from ambiguity or obscurity, it is not permissible to refer to Parliamentary materials pursuant to Pepper v. Hart (supra). The meaning of the provision is clear. If a person claims that he has been refused employment because he is a member of a trade union, it is not necessarily an answer for the person who refused employment to say that the refusal was because of or was related to that member's trade union activities. It is a question of fact and degree in every case for the Industrial Tribunal to determine whether the reason for refusal is that outlawed by S.137(1)(a).For that reason the Tribunal misdirected itself in law on the proper construction of the section and the matter is remitted to a differently constituted Industrial Tribunal to rehear.