MR R MARSHALL & OTHERS v THE HAMPSHIRE PROBATION SERVICE [1999] UKEAT 1440_98_2909

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1440_98_2909Case No Appeal No. EAT/1440/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R MARSHALL & OTHERSAPPELLANTTHE HAMPSHIRE PROBATION SERVICERESPONDENT
Before
His Honour Judge Peter Clark Mr S M SpringerDate 29 September 1999
[1]APPEARANCES For the Appellants MS T GILL (of Counsel) Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondents MR P DOUGHTY (of Counsel) Instructed by: Mr Kevin Gardner Hampshire Probation Service The Castle Winchester Hampshire JUDGE PETER CLARK : This is an appeal by the nine applicants before the Southampton Employment Tribunal, sitting on 9th June and 2nd September 1998, against that tribunal's decision, promulgated with extended reasons on 13th October 1998, dismissing their complaints of action short of dismissal contrary to s.146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 . Background The nine appellants were all employed by the respondent as Probation Officers. All were members of the National Association of Probation Officers ["NAPO"], an independent trade union. Seven were members of the union Executive Committee, the other two were active members of the union.[2]Under their conditions of service all appellants were classified as essential car users, entitled to certain payments in respect of the use of private vehicles for business purposes. That expense was more valuable to them than casual car user status.[3]On 29th October 1996, as part of a cost cutting exercise, Mr Murphy, the Chief Probation Officer, informed all staff of a resolution by the Board of the respondent service, that with effect from 23rd March 1998 all essential car users would be transferred to casual car user status. That notification was followed by consultations with the unions, including NAPO.[4]Meeting then took place between management and unions, but union members remained opposed to the alteration in car allowances. On 14th February 1997 the local branch of NAPO resolved to resist the change. In November 1997 that branch passed a motion of no confidence in Mr Murphy and instructed the union Executive to make representations to members of Parliament, the Home Office, Councillors and the local and national media. The issue had been raised at a public national meeting of the union in October 1997 and the dispute was reported in local and national newspapers. The National Executive of NAPO balloted union members in Hampshire. There was a majority of the membership in favour of industrial action short of a strike.[5]On 25th February 1998 Mr Murphy met with Miss Wade, his Deputy, to discuss the NAPO Branch motion of no confidence and the union's press campaign. They felt that the union was putting forward a bogus campaign, namely, that the re-classification of car allowances could affect the supervision of high-risk offenders amounting to a threat to the public. They agreed that a selection of car user forms should be obtained and used to counter statements made by the union which tended to suggest any risk to the public. Mr Murphy wanted the information to be obtained discreetly without the knowledge of those employees whose car usage details were to be collected.[6]Following that meeting Miss Wade e-mailed Miss Simmons, the Human Resources Manager, in these terms:
"Steve [ Mr Murphy ] would like us to get an idea of some of the mileage claims of people likely to be active in the dispute – just in case needed. I suggest (the nine Applicants and one other). Can you get their last six months. Please? Best wishes."
[7]The relevant records were kept by a Support Services Officer. Miss Simmons passed on the instruction to her secretary Cindy Escott, assuming that she would obtain the information from that officer. Instead, in error, so the tribunal found, Ms Escott e-mailed the 10 named officers on 5th March 1998 in these terms:
"From: Cindy Escott Subject: Copies of Travel Claims I have been asked on behalf of Barbara from Simmons/Sue Wade Stephen Murphy to get copies of your travel claims for the last six months (Sept-Feb). There is nothing wrong with them, they are looking at a selection of claims from a selection of people and your name has been 'picked'. Please could you forward copies to me as soon as convenient. Martin Roscoe – I have copies of all yours except for 23/11 – 22/12 1997. Many thanks. Cindy Escott"
[8]The 10 named officers, out of 160 Probation Officers employed by the respondent, were all active in their unions. In addition to the nine appellants, members of NAPO, was a tenth officer who was a member of the UNISON Executive. All were active in opposing the respondent's plan to withdraw the essential car user allowance.[9]It was Ms Escott's e-mail which prompted these complaints, presented to the Employment Tribunal on 20th March 1998. The tribunal decision[10]S.146(1)(b) 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."
In essence, the appellants contended that in identifying and targeting ten active union members whose travel claims were to be investigated, the respondent was taking action short of dismissal against them as individuals for the purpose of preventing or deterring them from taking part in the activities of an independent trade union at an appropriate time or penalising them for doing so. For the respondent, it was argued that the action which they took against the appellants, as individuals, was not for an unlawful purpose under s.146(1)(b); the purpose was to obtain information so that if necessary they would be in a position to counter factually allegations which those individuals might in future make in relation to travel claims generally as part of the union publicity campaign. In short, the tribunal accepted the employer's case as to their purpose. That was not an unlawful purpose. The complaints failed. The Appeal[11]Ms Gill starts from the proposition that it was conceded below on behalf of the respondent that in identifying and targeting 10 active union members, whose travel claims were to be investigated, the respondent was taking action against those 10, including these appellants, as individuals. Further, it was not disputed that the press campaign was a trade union activity in which the appellants were taking part at an appropriate time. That leaves only the question whether the respondent has shown that its purpose in taking that action was not unlawful under s.146(1)(b).[12]In attacking the tribunal's conclusion that the respondent's purpose was not unlawful Ms Gill submits that the tribunal fell into error in the following ways, individually or cumulatively.[13]First, inadequate findings of fact: We have been taken to the Chairman's Notes of Evidence given by Mr Murphy in cross-examination. When asked why information on the appellants' travel expenses was to be obtained, he said that he wanted a benchmark to measure claims made by the union side in the press campaign. His first port of call would be the union Branch Chair if he felt that there had been misrepresentation. He would then tell him that the press claims were unsustainable, that he could show him the evidence and he would prefer him to desist. Mr Murphy said he had no intention of speaking to individual members about what they may say to the press. If necessary he would have made his own statements to the press, to correct misinformation about safety of the public without naming individuals. His purpose, he said, was to ensure that inaccurate information was not given to the press. He agreed that if those events unfurled the individuals would learn that their expenses forms had been obtained from the Branch Chairman.[14]Ms Gill's complaint is that the tribunal made no reference to that evidence in their findings. They stop chronologically at the 5th March e-mail. That evidence is important, she submits, when assessing the respondent's purpose. The respondent may have had both a final and an intermediate purpose. See the example given by Dillon LJ in Palmer v Associated British Ports [1993] IRLR 336 , paragraph 21.[15]We cannot accept that submission. It seems to us that the tribunal adequately dealt with the material facts. As to what Mr Murphy may have done with the information in the future, we think that that is encapsulated within their critical finding, that he would use it to correct any disinformation given out by the union side in the future. That was a legitimate purpose for collecting the information. The protection of the section does not extend to preventing an employer from correcting misinformation in the course of a union activity. Even if that had the effect of deterring an individual from taking part in the press campaign, that was not the purpose. The sole purpose was to correct any misinformation.[16]Next, Ms Gill submits that the tribunal reached a perverse finding in concluding that because the respondent did not intend the 5th March e-mail to go out to the individuals, that was a relevant consideration in finding that the respondent did not have the purpose of deterring the appellants from taking part in the press campaign. One cannot deter by action which is unknown to the individual. She refers to Mr Murphy's evidence that eventually if he went to the Branch Chair, the individuals would come to learn that their expenses forms had been collected and that undermined the tribunal's finding as to an intention, on the part of the respondents, that the appellants would not know what was happening.[17]That evidence does not, in our view, prevent the tribunal from finding as they did. At the time when the complaints were presented it had not been the respondent's intention that the appellants knew of the information being collected. That gave the tribunal some insight into the respondent's intentions and thus their purpose at that time. In any event, that point was not determinative of the real question, what was the respondent's purpose?[18]Finally, Ms Gill submits that the tribunal's decision was perverse. We disagree. It seems to us that it was plainly open to the tribunal on the facts of this case to conclude that the respondent's purpose was as they stated. That was not an unlawful purpose under s.146(1)(b). There are no grounds in law for interfering with the tribunal's conclusion. The appeal is dismissed. JUDGE PETER CLARK : We have received an application for leave to appeal to the Court of Appeal from Ms Gill. We do not think that this cases raises a point of principle which we ought to send to the Court of Appeal. If they want to entertain it, no doubt they will so indicate.