Smiths Industries Aerospace & Defence Systems v Rawlings [1996] UKEAT 1172_95_0108

EAT
Smiths Industries Aerospace & Defence Systems v Rawlings
[1996] UKEAT 1172_95_0108 · 1996-06-24

JUDGE PETER CLARK :

We have before us separate appeals by both the employee, Mr Rawlings and the employer Smith Industries Aerospace and Defence Systems Ltd ["the employer"], against a decision of the Bristol Industrial Tribunal dated 21st September 1995, upholding the employee's complaint of unfair dismissal.

The Facts

Mr Rawlings was employed by the employer as a setter/operator at their Cheltenham site from 15th March 1974 until his dismissal by reason of redundancy with effect from 9th December 1994.In late 1991 he was invited by his trade union, the A.E.E.U, a union recognised by the employer, to undertake the task of health and safety representative. He agreed and was elected to that position by fellow union members in February 1992. In 1993 he became Chairman of the Health & Safety Representatives Committee. He went on a number of courses and took his health and safety duties seriously. The tribunal found that he spent about one-third of his working time on these duties and the remainder on production duties as a machine operator.In November 1994 the employer identified a need for redundancy which affected Mr Rawlings' department. There were consultations with the union which declined to agree to a method of selection amongst its members, but recognised the need for management to carry out such an exercise.This is a large employer, employing some 880 people at the Cheltenham site. It had experience of earlier redundancies and its own human resources department.The method used for selection was the now familiar points scoring, weighted system, which in this case involved seven criteria based purely on performance in the department. Those carrying out the assessments were specifically instructed to disregard activities outside the employee's production role.In Mr Rawlings' case he was scored together with 14 others engaged in similar work in the machinery and processing department.The relevant assessment was carried out by the foreman, Mr Gardner, and the machine shop superintendent, Mr Clarke. The Industrial Tribunal found as a fact that they carried out the assessment in good faith.Thereafter those assessments were discussed with Mr Orchard the Logistics Support Machine Shop Manager. Some alterations were made to the assessments as a result of those discussions.We have the final point-score matrix before us. Three out of the 15 candidates for redundancy were earmarked for selection, based on the points scored. Overall Mr Rawlings came third from last with 168 points; below him were two employees on 152 and 166 points. The next lowest candidate above him scored 180 points.Looking at the individual criteria scores the areas which let him down were Current Job Performance: Achievement of Targets and Outputs of Work and Quality and Standard of Work. Although not heavily weighted, he came first under the heading Work Behaviour; reference to safety, housekeeping, attendance etc. The Industrial Tribunal found that the assessors, as instructed, disregarded his health and safety duties in carrying out their assessment.Mr Rawlings attended an "at risk" interview with Mr Orchard on 22nd November. He then pursued the employer's internal appeal procedure.The main basis of his appeal was that his health and safety duties operated to his detriment when the criteria for redundancy were applied. There were three stages of appeal, all unsuccessful. At the second stage Mr Moody, a Quality Executive who had not previously been involved in this redundancy exercise, considered the appeal fairly, in the view of the Industrial Tribunal, carrying out his own enquiries. He increased two of Mr Rawlings' scores, including that relating to safety. That adjustment was based on his knowledge of health and safety matters; not his duties as a representative. However, those improvements, leading to the final score of 168, did not save Mr Rawlings from selection for redundancy.

Health & Safety Representatives

It is convenient, before turning to the Industrial Tribunal's conclusions and the submissions made in both appeals, to set out the statutory framework relating first to the status and functions of Health & Safety Representatives, and secondly to their employment protection rights.

Status and functions

Section 2 of the Health and Safety at Work etc Act 1974 ["the 1974 Act"] provides:
" (4) Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed.
...(6) It shall be duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures."The first Regulations made under the 1974 Act were the Safety Representatives and Safety Committees Regulations 1977 ["the 1977 Regulations"]. Regulation 3 provides:
"(1) For the purposes of section 2(4) of the 1974 Act, a recognised trade union may appoint safety representatives from amongst the employees in all cases where one or more employees are employed by an employer by whom it is recognised, ...
...(3) A person shall cease to be a safety representative for the purposes of these Regulations when_(a) the trade union which appointed him notifies the employer in writing that his appointment has been terminated; or(b) he ceases to be employed at the workplace but if he was appointed to represent employees at more than one workplace he shall not cease by virtue of this sub-paragraph to be a safety representative so long as he continues to be employed at any one of them; or(c) he resigns."Council Directive No 89/391 ["the Directive"] required member states to introduce measures to encourage improvements in the safety and health of workers at work. Consequently, and with a view to implementing the Directive, the Management of Health and Safety Act at Works Regulations 1992 ["the 1992 Regulations"] came into effect on 1st January 1993, modifying to some extent the 1977 Regulations. Thus Regulation 4A was inserted into the 1977 Regulation by the 1992 Regulations to provide:
"(1) Without prejudice to the generality of section 2(6) of the Health and Safety at Work etc Act 1974, every employer shall consult safety representatives in good time with regard to- (a) the introduction of any measure at the workplace which may substantially affect the health and safety of the employees the safety representatives concerned represent; (b) his arrangements for appointing or, as the case may be, nominating persons in accordance with regulations 6(1) and 7(1)(b) of the Management of Health and Safety at Work Regulations 1992; (c) any health and safety information he is required to provide to the employees the safety representatives concerned represent by or under the relevant statutory provisions; (d) the planning and organisation of any health and safety training he is required to provide to the employees the safety representatives concerned represent by or under the relevant statutory provisions; and (e) the health and safety consequences for the employees the safety representatives concerned represent of the introduction (including the planning thereof) of new technologies into the workplace."

Employment Protection

Article 11 of the Directive deals with consultation between employers and workers and/or their representatives in relation to health and safety at work matters. Article 11(4) specifically provides that workers health and safety representatives may not be placed at a disadvantage because of their activities in connection with health and safety matters. In considering the statutory protection afforded to Health and Safety Representatives we think it instructive to look also at the protection afforded to ordinary trade union representatives in the workplace such as shop stewards.

Time Off

Regulation 4(2) of the 1977 Regulations provides:
" (2) An employer shall permit a safety representative to take such time off with pay during the employee's working hours as shall be necessary for the purposes of- (a) performing his functions under section 2(4) of the 1974 Act and paragraph (1)(a) to (h) above; (b) undergoing such training in aspects of those functions as may be reasonable in all the circumstances having regard to any relevant provisions of a code of practice relating to time off for training approved for the time being by the Health and Safety Commission under section 16 of the 1974 Act."
Section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992 ["the 1992 Act"] provides:
"(1) An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out any duties of his, as such an official, concerned with- (a) negotiations with the employer related to or connected with matters falling within section 178(2) (collective bargaining) in relation to which the trade union is recognised by the employer, or (b) the performance on behalf of employees of the employer of functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union.
(2) He shall also permit such an employee to take time off during his working hours for the purpose of undergoing training in aspects of industrial relations-(a) relevant to the carrying out of such duties as are mentioned in subsection (1), and(b) approved by the Trade Union Congress or by the independent trade union of which he is an official.Section 169 provides for payment in respect of time taken off under Section 168.

Action short of dismissal

Section 22A of the Employment Protection (Consolidation) Act 1978 ["the 1978 Act"] as inserted by Section 28 and Schedule 5 to the Trade Union Reform and Employment Rights Act 1993 ["The 1993 Act"], provides that an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he is carrying out the activities of a health and safety representative at work.Section 146 of the 1992 Act provides:
"(1) 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-
...(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."

Dismissal

Section 57A of 1978 Act provides that:
"(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, of more than one, the principal reason) was that the employee- (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, carried out, or proposed to carry out, any such activities, (b) being a representative of workers on matters of health and safety at work, or a member of a safety committee- (i) in accordance with arrangements established under or by virtue of any enactment, or
(ii) by reason of being acknowledged as such by the employer,performed, or proposed to perform, any functions as such a representative or a member of such a committee,"Section 59 of the 1978 Act provides that:[(1)] Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him [the employee] and who have not been dismissed by the employer, and either-(a) that the reason (of, if more than one, the principal reason) for which the employee was selected for dismissal was an inadmissible reason; ...

then, for the purposes of this Part, the dismissal shall be regarded as unfair."

By Section 59(2) an inadmissible reason includes the reason specified in Section 57A of the 1978 Act.Section 152 of the 1992 Act provides that:
"(1) ... 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-
...(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time."

The Industrial Tribunal Decision

Mr Rawlings complaint to the Industrial Tribunal was put in this way:

"Unfair selection for Redundancy by way of Health & Safety Reasons (Activities)"

He set out the nature of his case in the grounds of complaint. In particular he said this:
" On 9th December 1994 a meeting was held at the Company; this was an opportunity for me to Appeal against my dismissal and I was represented at this meeting by the Full Time Officer of my Trade Union, Mr W.T. Evans.
At this meeting I expressed clear dissatisfaction that I had been underscored due to the Assessors failing to take proper account of my duties as Chairman of the Health & Safety Committee. ...I believe that the Assessors, who were also my Supervisors and Managers, took the view that time off the job spent on Health & Safety was a hindrance to the efficiency of the shop. The irritation displayed by my direct Supervision and harassment I suffered at times, which at one stage caused me to resign, ... confirms my belief that because of the attitude of Supervision, I have been deliberately under-marked during the assessment process. Furthermore, it has often happened that time booked or recorded by Supervision as time spent by me on Health & Safety duties bore no resemblance to the actual time taken, indeed one representative was told he was not doing himself "any favours by booking so much time to Health & Safety"."The employer contended that he had been fairly selected for redundancy and denied that his health and safety duties played any part in the dismissal.Having considered the evidence and arguments the Industrial Tribunal expressed their conclusions in paragraphs 20-24 of the reasons in this way:
"20 On the facts as we have found them we are satisfied that the health and safety activities of the applicant did not contribute in any material way to his selection for redundancy. We do not need therefore to consider the provisions of Section 57A and Section 59 of the Employment Protection (Consolidation) Act 1978. We have concluded that our decision must be based upon the provisions of Section 57(3) of the Employment Protection (Consolidation) Act 1978 and the guidance that is to be derived from the authorities in relation to that section and consideration of the provisions of the European Council Directive of 12 June 1989 on the introduction of measures to encourage improvements in the Safety and Health Workers at Work 89/391.
21 We believe a distinction can be drawn between ordinary trade union duties, which may properly be disregarded for the purpose of selection for redundancy, and the health and safety duties which an employee although elected by the union members is nevertheless carrying out for the employer under the requirements of the health and safety legislation.22 We are persuaded that the respondent did not treat the applicant as an individual employee fairly in disregarding his health and safety duties which comprised one-third of his work for the Company in making their assessment as to his contribution as an individual and whether or not he should be retained by them in their efforts to identify and secure the most efficient workforce.23 The facts are that the applicant carried out this particular part of his job particularly well and we do not believe that at the end of 1994 (by which time the importance of health and safety issues was understood and respected by businesses throughout the whole spectrum of commercial activities) it was reasonable for any employer to select for redundancy an employee who spends one-third of his time on health and safety matters without taking into account his performance of that part of his job. The criteria by which they assessed him gave no possibility of recognition of the skills and other qualities shown by him during one-third of his working time and we do not think that any reasonable employer could properly adopt these criteria when considering for selection for redundancy an employee who has, in effect, two jobs, one occupying two-thirds of his time and one one-third of his time.24 We are accordingly unanimous in our finding that whilst the reason for dismissal of the applicant was redundancy the respondent did not act fairly and reasonably in all the circumstances in treating this as a sufficient reason to dismiss the applicant in that in making their assessment of his contribution they wholly disregarded one-third of his job. Whilst that is the basis of our decision we also decided that the disregard of his health and safety work placed him at a disadvantage as envisaged by Article 11(4) of the Directive."

The Appeals

(1) Mr Rawlings' appeal

It is accepted by both Counsel that there is no free-standing claim based on Article 11(4) of the Directive. See Biggs v Somerset County Council [1996] ICR 364 . We agree, and accordingly the alternative finding by the Industrial Tribunal in paragraph 24 of the reasons cannot stand.Mr Carr submits that Section 57A of the 1978 Act, inserted by the 1993 Act to implement the Directive, must be read consistently with Article 11(4) of the Directive. Litster v Forth Dry Dock & Engineering Co Ltd [1989] ICR 341 . When so applied to the facts as found in this case Mr Rawlings was placed at a disadvantage in that his health and safety representative duties were not taken into account during the redundancy selection exercise. Accordingly the tribunal ought to have found that Mr Rawlings' dismissal was automatically unfair under Section 57A and 59 of the 1978 Act.In reply, Mr Bowers relies upon the finding by the tribunal contained in the first sentence of paragraph 20 of the reasons. Further, he contends that there is no finding that Mr Rawlings was put at a disadvantage in the selection exercise by reason on his health and safety duties. He was judged solely on criteria relating to his job as a setter/operator. It was in that respect only that redundancies were to be made. It was permissible, and indeed correct, for the employer to disregard his health and safety duties when carrying out the assessment. Mr Bowers challenges the tribunal's observation that the respondent had in effect two jobs. He was appointed to the health and safety role by his trade union. Those duties do not fall within the scope of his contract of employment; that is why the 1977 Regulations provide for paid time off to carry out those duties.

(2) Employers' Appeal

Mr Bowers argues that the tribunal was wrong to find that the dismissal was unfair under Section 57(3) of the 1978 Act because the employer had failed to take into account Mr Rawlings' performance in carrying out his health and safety duties. It was not for the Industrial Tribunal to rewrite the employers' selection procedure. BL Cars v Lewis [1983] IRLR 58 . British Aerospace v Green [1995] ICR 1006 , 1010 A-E.Mr Carr submits that in concluding that the dismissal was unfair under Section 57(3) the tribunal reached a permissible finding, sitting as an industrial jury. In particular, the tribunal found that no reasonable employer would have adopted the criteria used by this employer, which ignored the employee's performance which occupied one-third of his working time, and in a climate where the importance of health and safety issues was understood by business and, we would add, underscored by the Directive and subsequent United Kingdom legislation designed to implement the objects of the Directive.

Conclusions

(1) There is no free-standing right of action arising out of the Directive. In sofar as the tribunal purported to find that such a right existed, in its alternative finding in paragraph 24 of the reasons, it erred in law.(2) Sections 22A and 57A of the 1978 Act must be read in a way that is consistent with Article 11(4) of the Directive. We are satisfied that no tension exists between the Directive and the implementing domestic legislation.(3) The first question for this Industrial Tribunal was whether or not the reason or principal reason fell within Sections 57A and 59 of the 1978 Act.(4) We look first at the primary findings of fact. The tribunal rejected Mr Rawlings' case, first that his absence from production duties, and secondly his insistence on compliance with health and safety requirements, caused his foreman, Mr Gardner to be biased against him when he carried out the selection exercise. We pause to observe that had either or both of those suggestions been accepted, it would then have been open to the tribunal to conclude that the reason or principal reason for his selection for dismissal by reason of redundancy was an inadmissible reason under Section 57A. However, the facts were found against him.(5) The importance of the role of health and safety representatives cannot be underestimated. It has, as a result of the Directive and subsequent domestic legislation, increased in importance.(6) However, the protection against dismissal in a redundancy exercise, afforded to health and safety representatives, is neutral. They must not be disadvantaged, for example in the ways identified in (4) above (negative discrimination). Equally, they are not entitled to be advantaged over their fellow employees in the selection pool (positive discrimination). The argument advanced by Mr Carr in this case amounts, in our judgment, to a claim for positive discrimination.(7) Health and safety representatives duties are not carried out as a "second job", as the tribunal found. A mechanism exists to provide health and safety representatives, appointed by a recognised trade union, with paid time off to perform those duties. It follows that those duties do not form part of the employee's duties performed under his contract of employment.(8) Contrary to the tribunal's finding at paragraph 21 of the reasons there is no material distinction, so far as employment protection is concerned, between the duties of a trade union health and safety representative and the duties of a trade union shop steward, or other employee taking part in the activities of a trade union.(9) Just as it would be invidious to assess a shop steward on the way in which he carries out those duties on behalf of his trade union and its members, it would be equally wrong to carry out such an assessment on a part-time health and safety representative, either in his favour or against him.(10) It follows, in our judgment, that the tribunal was entitled to conclude that there was here no breach of Sections 57A and 59 of the 1978 Act. However, it fell into error in rewriting the employer's redundancy selection criteria to include an assessment of Mr Rawlings' health and safety role.For these reasons we shall dismiss Mr Rawlings' appeal and allow the employer's appeal.We have considered whether, under our powers contained in paragraph 21(1) of Schedule 11 to the 1978 Act, we should remit the case for rehearing or exercise the powers of the Industrial Tribunal ourselves.In our view the tribunal's primary findings of fact are clear. Save for the question of taking into account Mr Rawlings' performance in his health and safety role there is no criticism of the selection criteria, nor their application in his case. In these circumstances we shall reverse the finding of unfair dismissal made by the tribunal and substitute a declaration that the dismissal was fair.