Farnsworth Ltd v McCoid [1998] UKEAT 1266_97_2703

EAT

Farnsworth Ltd v McCoid

[1998] UKEAT 1266_97_2703 · 1998-03-27

JUDGE BUTTER QC :

This is an appeal by F.W. Farnsworth Ltd in respect of a decision of the Chairman of an Industrial Tribunal held at Nottingham on 8 September 1997. His extended reasons were sent out on 17 September. He sat alone and heard a preliminary issue as to the question of jurisdiction.

We have some concerns as to whether that was the appropriate course, but we were told that it was one that both parties agreed to and so we make no further comment in relation to that.

The case involved consideration of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 , the relevant part reads as follows:

"(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 taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so."

The Chairman set out the facts briefly. The Applicant had worked as a factory operative and was a duly elected shop steward. There was an agreement between the employers and the Transport and General Workers Union and under that agreement the employers had the right to de-recognise a shop steward if his conduct came into question. We have at this appeal considered the terms of the procedural agreement.

The dispute arose in relation to a number of incidents commencing in March 1996. The details are not material for the purpose of the appeal, but subsequently the Applicant claimed that he had been victimised. The employers did not take any disciplinary action against the Applicant, but on 10 June 1996 gave notice to one of the union's full-time officers that it intended to de-recognise the Applicant. That procedure took a substantial period of time but the Applicant was de-recognised in June 1997.

In his reasons the Chairman referred to Section 146. He summarised the arguments which had been presented to him and he quoted from part of the judgment of Nicholls LJ as he then was, in Ridgway & Fairbrother v The National Coal Board

[1987] IRLR 80

. He said in relation to the present case:

"7. A distinction was made in the argument in this case between de-recognising an individual shop steward and de-recognising the union of which he was a member.

8. My conclusion is [said the Chairman] that the words 'as an individual' are there to make that sort of distinction. Thus, the applicant would not be entitled to complain under Section 146 if what the respondent had done was to seek to de-recognise the union itself.

9. In this case, the action of de-recognition taken against the applicant has, in the ordinary sense of the expression, been taken against him as an individual. Furthermore, the applicant ... has argued, having regard to the grounds of complaint, that the sexist comment giving rise to the applicant's de-recognition has been used by the respondent as a pretext for ridding itself of a troublesome union official. It would be astonishing if the Tribunal was precluded from investigating such an allegation because the action short of dismissal, which had the effect of preventing the applicant from taking part in the activities of an independent trade union, related to him as an officer."

The Chairman concluded that for the reasons he had referred to he decided that the Applicant's case has been brought within Section 146 (1) (b), and that the matter should now go forward to a hearing by a full tribunal to determine the principal issue in the case, namely, the purpose which lay behind the decision to de-recognise the applicant.

The Appellant's case is that, on analysis, the action taken was against the Trade Union and not against an individual, because the individual was simply an employee working as a shop steward and that therefore he would only be affected by the action in terms of status and not otherwise. Reliance is placed upon a number of passages from Harvey . Thus, at paragraph N 701 Harvey says:

"So the requirement that the employer's action must be taken against the employee 'as an individual' is intended to mark off the case where the employee has been picked on and victimised from the case where he simply suffers as a member of the rank and file of the union army. In general terms, since all is fair in love and industrial war, the employee cannot complain if he is wounded in what is a genuine collective engagement; but he can complain if the employer tries to pick him off by sniper fire."

We approve the contents of that paragraph. Other paragraphs have been cited to us, including 710 where the authors of Harvey say:

"In any event, the majority view in Ridgway v National Coal Board must now be accepted as binding authority, and therefore action against an employee 'as an individual' is to be construed as meaning action which affects him in his capacity as employee, so that, it seems, action will be regarded as taken against him 'as an individual' if it affects his pay and conditions, hours of work, terms of employment, promotion, or any other benefits of or incidents of his actual employment.

We have reservations about that and some other passages which follow because what in our judgment is crucially important is to consider the words of their Lordships in Ridgway v National Coal Board in the context of the particular decision. It is, in our view, of great importance to bear in mind that, in that particular case, it was in reality a battle between the employers on the one hand and a trade union on the other.

It is against that background that the passage from the judgment of Nicholls LJ at page 658 E - F and G in the Industrial Cases Report must be seen, as must the passage of Bingham LJ, as he then was, at page 671 F. It may be convenient if I refer specifically to that latter paragraph.

"The purpose of including the words "as an individual" in .... [the relevant sections of the Act] was, as I infer, to make plain that the action (short of dismissal) of which an employee is entitled to complain must be taken by his employer against him as an individual and that he cannot complain of action which only affects him in his capacity as a member of an organisation or body which is the subject of action. It is to exclude indirect or derivative complaints."

In the present case, in substance, we accept the argument presented to us by Mr Linden. This was prima facie not just a battle between an employer and a trade union and, in our judgment, on the material before us the action which was taken directly affected or may directly have affected the employee as an individual.

In our judgment the Chairman was entitled to reach the conclusion he did as a matter of law. We cannot say that he erred in so doing. In the result, it follows that it is our view that the appeal fails and must be dismissed.