LONDON BOROUGH OF ISLINGTON v MR D HUTCHINGS [2002] UKEAT 34_01_2702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 34_01_2702Case No Appeal No. EAT/34/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF ISLINGTONAPPELLANTMR D HUTCHINGSRESPONDENT
Before
His Honour Judge A WilkieSir Gavin LairdDate 27 February 2002
[1]APPEARANCES For the Appellant MR T BRENNAN (One of Her Majesty's Counsel) Instructed by: Director of Law & Public Services London Borough of Islington Town Hall Upper Street London N1 2UD For the Respondent MR T COGHLIN (of Counsel) Instructed by: Messrs Bolt Burden Solicitors 16 Theberton Street Islington London N1 0QX HIS HONOUR JUDGE A WILKIE QC This is an appeal by the London Borough of Islington against a Decision of the Employment Tribunal sitting at London Central, on 20 - 22 September 2000 which found that Mr Hutchings' suspension without pay by his employers was contrary to section 146(1)(b) of the Trade Union Labour Relations Consolidation Act [1992] , that is to say that he had been subjected to detriment by his employer for the purpose of penalising him for taking part in the activities of an independent trade union at an appropriate time.[2]The detriment complained of was that on 19 November 1999, he was suspended from work without pay. The Tribunal noted that some three months after that occurrence, as a result of an internal appeal, the decision to suspend him without pay was overturned, and he was reinstated, and his backpay was also restored to him. However, we have also been informed that, he is now retired on grounds of ill health, and that the heads of compensation for which claims in these proceedings will encompass both personal injury and injury to feelings.[3]The Applicant was, at one and the same time, in a managerial position within the Client Emergency Team, but was also a shop steward and an assistant branch secretary of Unison. The Tribunal Decision covers some seventeen pages and it sets out in considerable detail, and with a degree of care, the history of matters which led to his suspension by a manager several places above him in the hierarchy, a Mr Jennings.[4]The Tribunal, in particular, set out a history of a dispute concerning the Appellant's plans to relocate the Central Emergency Team from a Terrapin building to other different locations. They do not, however, make it particularly clear whether in describing those various meetings, Mr Hutchings was in attendance as a manager, and therefore, as an employee, or whether he was there as a trade union representative. As will become apparent, that is a significant omission. Suffice it to say, however, that the Tribunal made some very clear and trenchant findings of fact and made observations about the conduct of Mr Jennings when matters eventually came to a head.[5]It appeared that by 18 November 1999, the trade union position was that it was no longer engaged in industrial action in the form of a refusal by its members to co-operate with the then planned relocation of the team. That relocation was going to go ahead, in the fullness of time, but there remained an outstanding industrial dispute on certain peripheral matters which had yet formally to be settled. Notwithstanding the fact that the substance of the dispute, namely whether the team was to relocate, had been resolved, the Tribunal found that Mr Jennings, provocatively, issued an unreasonable instruction that the CET should relocate overnight, between 18 and 19 November. In paragraph 37 of their Decision, they say this:
"…..We have had no real explanation from Mr Jennings as to why, in the middle of a move which he had no reason to believe would not be completed, he suddenly issued an instruction that it was to be completed well within the next 24 hours. He must have known that it would not be complete and we find his instruction to have been unreasonable and provocative. It is as though he was not really expecting the CET to be at the Municipal Offices at 7 am the following day and was simply devising a contrived means of imposing a severe disciplinary penalty on CET staff, including Mr Hutchings." and in paragraph 38, they say this: "
Our finding is that Mr Jennings acted precipitately, rode roughshod over the procedure for suspension and ignored established agreed council procedures for dealing with the union. Furthermore, he conducted no investigation before making a decision to suspend without pay. His view was that the position was self-evident, that he had issued an instruction which had not been complied with, and that therefore no investigation was necessary."[6]Furthermore, in paragraph 40 of the Decision they come to a further finding, namely that the action taken by Mr Jennings against Mr Hutchings was taken against him as an individual, and was motivated by individual animosity. In so doing, they took into account some background evidence emanating, apparently, in the form of complaints made by Mr Hutchings, or on his behalf, in the past, that there was continuing animosity on the part of Mr Jennings against Mr Hutchings, personally. It is against those findings of fact that the Tribunal went on to consider whether the complaint made by Mr Hutchings under section 146(1)(b) of the 1992 Act was made out. They said, in paragraph 41, as follows:
"In order for Mr Hutchings to succeed, we have also had to consider whether or not the real reason for his suspension was because of his trade union activities. The first finding we have to make is whether or not, at the time of his suspension, Mr Hutchings was participating in the activities of an independent trade union at an appropriate time."
[7]They then refer to authority, to the effect that trade union activities should not be given an unduly restrictive construction, and they go on to say:
"With that guidance, we have no hesitation in finding that, as a trade unionist, Mr Hutchings had legitimately sought the assistance of his trade union in resolving the problems about the move to the Municipal Offices. Indeed, the council had a recognised disputes procedure intended to avert industrial action, which was invoked by the trade union."
And then they go on to say:
"The Respondents have argued that Mr Hutchings was not protected within section 146(1)(b) on the grounds that he was already involved in industrial action, but we do not support that view. We find that at the time of his suspension he was taking part in the activities of an independent trade union within the words of section 146(1)(b). We have also had to consider whether he was so taking part at 'an appropriate time', a phrase defined but not explained by section 146(2). Our finding is that, since there was an issue in dispute which needed to be resolved, it was an entirely appropriate time for Mr Hutchings to be involved and to participate either within or without his working hours, so that the issues about the move of CET could be resolved."
[8]Mr Brennan, on behalf of the Appellant, has subjected this particular part of the Decision to serious criticism. He has stated that the Tribunal seems, on the face of it, to have moved directly from its statement, as to what Mr Jennings' belief was namely that he was entitled to suspend without pay for a refusal of instruction given by him - and his motivation - namely that it was motivated by individual animosity against Mr Hutchings - to a conclusion that the purpose of his action was to penalise Mr Hutchings for trade union activities. Furthermore, he points out that there is nowhere in the Decision any identification by the Tribunal of what those trade union activities were. As far as the requirement that the activities take place at "an appropriate time" they have wholly failed to apply the provisions of 146(2), and in particular, subsection (b) which defines an appropriate time as meaning a time within his working hours, at which, in accordance with arrangements agreed with, or consent given by, his employer, it is permissible for him to take part in the activities of a trade union.[9]Mr Coghlin, on behalf of the Applicant, acknowledges that this is not, certainly in its latter paragraphs, the happiest of decisions. He points out that in this context it is wrong to be unduly legalistic or analytical, or to require more than is sensible of Tribunals, in applying these provisions in a commonsense way. The essence of his submission is that if one looks at the Decision as a whole, one can see that the Tribunal was, in essence, saying that the purpose of Mr Jennings' action was to penalise Mr Hutchings by reason of personal animosity in the context where, over a period of time, Mr Hutchings had been engaged in trade union activities in connection with the dispute over the proposal to move the team's location. It is implicit from the fact that there was a recognised disputes procedure that such activities would have been at an appropriate time and that, in particular, the refusal of Mr Hutchings to accede to the instruction itself constituted a trade union activity.[10]It seems to us that what Mr Coghlin is doing, and implicitly inviting us to do, is to reconstruct and rewrite the reasoning of this Decision in a way which would fit their findings of fact and so as to fit those facts into the statutory structure. In so doing, we would effectively supplement the manifest deficiencies of this Decision. We think that it would be quite improper for us to attempt to do so in this particular case. This is not least because, as we have indicated, there is an ambiguity in Mr Hutchings' position as being, on the one hand a manager, receiving instructions as such, and on the other hand though it is not by any means clear, as a trade union official representing his members. It certainly does appear from the passage to which we have referred in paragraph 41, that the Tribunal was tending to the view that he was a trade union member, invoking the assistance of his union, and insofar as he was refusing to comply with an instruction was doing so qua member, rather than qua organiser.[11]Mr Brennan has argued that there is a clear distinction between that which falls within the description 'trade union activity' and that which falls within the description of participating in industrial action falling short of a strike. He points out that there are quite separate statutory arrangements, where dismissal flows respectively from trade union activities on the one hand, and participation in industrial action short of a strike, on the other. These are provided for respectively in section 152 and sections 237 and 238 of the 1992 Act. We think that that distinction is well made by Mr Brennan and that merely participating in industrial action, as a trade union member, cannot of itself, fall within the provisions of section 146.[12]Furthermore, Mr Brennan has pointed out that in making their finding of fact, that Mr Jennings' action was to some extent influenced by personal animosity towards Mr Hutchings, they have had regard to background information which they themselves said that they were not going to take as anything other than background and have not made any findings of fact about. He says that that is taking into account irrelevant matters. We tend to agree with him, though whether or not that was determinative of the conclusion to which they came in paragraph 40, we are not in a position to know.[13]Mr Brennan also makes another point, which we think is not a good one. That is that, although in paragraph 31 the Tribunal rehearsed the fact that two other members of the team were also suspended without pay on the same occasion, in paragraph 39, the Tribunal said that they did not have any evidence as to what did or might have happened to other employees, although it was asserted that no other employees being investigated on misconduct grounds, had been suspended without pay. We think that that is a bad point because, plainly, what the Tribunal had in mind at paragraph 39, was what had happened on occasions other than this.[14]It therefore is our conclusion that we cannot, in all conscience, uphold this Tribunal Decision. It simply fails adequately to address the requisite questions which the statute poses: first to identify what was the purpose of the suspension - was it simply personal animosity or was that personal animosity on account of a role being played in the immediate past, or the far past, by Mr Hutchings; second, what were the activities which the Tribunal concluded were being penalised by the suspension was it simply the failure to comply with the instruction over the 18/19 November or was it a history of disputation between them? Third, as to those activities, were they properly trade union activities, or were they simply participation by Mr Hutchings, as a member of a trade union, in industrial action? Finally, by reference to the statutory definition of an appropriate time, were such activities, which might have been trade union activities, conducted at the appropriate time? These are all questions which this Tribunal has manifestly failed to address, even giving it the benefit of the most liberal and free ranging approach to its task.[15]On the other hand, we are not in a position to say, definitively, that Mr Hutchings' complaint must fail because, although the Tribunal has heard all the evidence and made many findings of fact, there is ambiguity as to what their crucial findings of fact are. Therefore we are not in a position to substitute our view, either way, of upholding it as being essentially right, or overturning the Decision and dismissing the complaint.[16]Therefore we propose to uphold this appeal. Our initial reaction was to remit the case back to the same Tribunal for them to consider the issues properly, no doubt having the advantage of hearing further argument and any further evidence that they might think fit to receive. For them to make full and proper findings of fact, and for them then to apply those findings of fact properly to the statutory framework provided by section 146. We are told that is impossible as the Chairman has retired. Thus we remit it to a different Tribunal for a full hearing.