MR B DONNELAN & OTHERS v BRITTON TACO LTD [2000] UKEAT 1058_00_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1058_00_2911Case No Appeal No. EAT/1058/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B DONNELAN & OTHERSAPPELLANTBRITTON TACO LTDRESPONDENT
Before
Mr Justice LindsayDate 29 November 2000
[1]APPEARANCES MR T R NAYLOR (Employment Rights Adviser) Personnel Advisory Services 49 Warrington Road Cuddington Cheshire CW8 2LN MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, the appeal of Mr B Donnelan and others in Donnelan & Others v Britton Taco Ltd . Over some 3 days between February and June 2000, the Employment Tribunal at Liverpool heard the case of 7 Applicants against Britton Taco Ltd. All 7 now appeal; all 7 appear by Mr Naylor of Personnel Advisory Services, and he alone, of course, because it is a preliminary hearing, addressed us today.[2]On 16 August the unanimous decision of the Tribunal under the chairmanship of Mr E T Connolly of Liverpool was sent to the parties; it was:
"that each of the complaints which the applicants had brought against the respondents are not well founded and are dismissed."
[3]On 21 August there was a Notice of Appeal by all 7 and lodged at the Employment Appeal Tribunal, and as the Appellant says, the essential argument is around the interpretation and application of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.[4]The extended reasons are some 20 pages of close typing and, as a first impression, they have all the appearance of a very careful and scrupulous examination of the case that was put before the Employment Tribunal. But complaint is made of a number of highly technical alleged shortcomings, which are said to represent an error of law. The Tribunal in their paragraph 16 on our page 22 began as follows:
"We turned next to the complaint that these 3 applicants" and those are 3 of the 7… "had not been consulted as employee representatives by the respondents in accordance with the provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, and therefore Protective Award should be made. We found that it was clear at the times of the dismissals i.e. prior to November 1999 the statutory amendments which were brought into effect in November 1999 had not yet come into effect and they did not apply to this case. At the time of the applicants' dismissals there was no requirement upon the respondents to make arrangements for the election of employee representatives."
And the first point taken in the Notice of Appeal emerges out of that part of the decision. The dismissals were in 1999 and there were amendments to the whole area of consultation as to prospective redundancies and so on that took effect, as the Tribunal said, from 1 November 1999, but what was the position before that, and in particular in July and August of 1999, which is when chiefly, the dismissals took place? Was there then no requirement upon the employer to make arrangements for the election of employee representatives?[5]The current 8 th edition of Butterworths Employment Law Handbook has some very small print as to the substitutions - and quite often substitutions for substitutions - made by the legislature in relation to the statutory and subsidiary provisions in this area.[6]The 7 th edition of the same work, which was published in July 1996 gives the law as at 6 June 1996, and that provides an earlier version of Section 188. In the 8 th edition form, Section 188(a) sets out detailed requirements for the election of employee representatives, where the employee representatives are elected by affected employees simply to perform the requirements of Section 188.[7]There was no corresponding provision in the 7 th edition. But that is not to say that there was no obligation on the employer in the earlier 7 th edition formulation to invite employees to elect a representative; the present 8 th edition Section 188(7)(a) was exactly the same in the 7 th edition's Section 188 (7)(a).[8]It is, as it seems to us, at least arguable , looking at the earlier 7 th edition form, that it was an error of law for an employer not to invite the election of employees' representatives, even if that was the only arrangement then required of him. It may be that there was a significant default if that was not performed.[9]There were not then the full detailed arrangements now prescribed for the election as are contained in Section 188(a) but, as we mentioned, it may be arguable that at least an invitation was required under the earlier legislation and it is far from clear from the Tribunal that there was any invitation complying with Section 188. Section 188(4)(f) in the 7 th edition is still the same in the 8 th .[10]So there is, it seems to us, an arguable error of law here that we ought to let go forward, but it is going to be essential at the full hearing that the Appellant prepares and agrees with the Respondent photocopies of the Queen's Printer's versions of the relevant statutes and of the relevant subsidiary legislation, in chronological order, so that the full hearing at the EAT can, with some confidence, trace the full course of applicable legislation, from time to time, throughout the relevant period, so it can see what the statutory and subsidiary legislation provision was at the various stages in the spring and summer of 1999, without either going blind or getting splitting headaches from trying to understand the sequence as it is in the very small print in Butterworths footnotes. So, subject to such a series of photocopies being prepared, that first point, as it seems to us, is proper to go forward.[11]The second point in the Notice of Appeal emerges in this way: again in paragraph 16 of the decision of the Tribunal it says this:
"At the time of applicants' dismissals in August and in the period leading up to their dismissals, the respondents had not been informed by the applicants nor by anyone else that the applicants had been elected as employee representatives of the workforce and that they wished to be consulted in accordance with the provisions of the 1992 Act."
[12]The Notice of Appeal says this:
"This conclusion is reached despite the fact that submissions for a Protective Award had been submitted to the Tribunal prior to the three representatives being dismissed and a letter confirming the submission of Section 188 claims had been sent by fax to the company on 12 th August 1999. Equally there is no requirement for such representatives to be elected prior to dismissals taking place. It is recognised in the evidence that there was a meeting of the workforce, off site" ( in fact it was in a pub): "and that a letter was submitted to the company bearing the three signatures of the representatives [9 (xxiii)]. The company's reply from Mr Simpson, is given at paragraph 9 xxiv."
[13]Applications for a Protective Award are not necessarily made by an elected representative; they can be made by others - see Section 189(1)(a)(b) and (c) - so the mere fact that a Protective Award is made does not indicate that the person applying for its making is an elected employee representative. It is the case, however, that, possibly before the Employment Tribunal had sent on copies of IT1s to the company, that they had been sent direct to the company by or on behalf of the representatives, in a manner that may be argued sufficiently to identify the representatives as representatives. So it is not the case that merely because Protective Awards were notified, that the company would know that representatives had been elected but it is at least arguable that the particular form of notification that took place did give notice of their election, and if that was the case, then it is at least arguable that they should, thereafter, have been treated as representatives, and that the Tribunal erred in its conclusion that the company had not known of that. There is, as it seems to us, some room for argument in that area, so we let this second point also go forward to a full hearing.[14]Accordingly, subject only to the caveat, so to speak, that the legislative history is going to need to be extracted from the Queen's Printer's versions, and photocopied and prepared in chronological order in the way that we have indicated, we shall let the Notice of Appeal go to a full hearing.