MR F J SMYTH-BRITT v CHUBB SECURITY PERSONNEL [2003] UKEAT 0620_03_2111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0620_03_2111Case No Appeal No. UKEAT/0620/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F J SMYTH-BRITTAPPELLANTCHUBB SECURITY PERSONNELRESPONDENT
Before
His Honour Judge Richardson Mr P GammonDate 21 November 2003
[1]APPEARANCES For the Appellant MR BRUCE CARR (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors No. 1 Snow Hill Plaza St Chads Queensway Birmingham B4 6JG For the Respondent MR MALCOLM JAMES CAMERON (Advocate) MHI Support Plc 4 & 5 Fellgate Court Froghall Street Newcastle under Lyme Staffordshire ST5 2UA HIS HONOUR JUDGE RICHARDSON This is an appeal against a decision of the Employment Tribunal sitting in Leicester for which Extended Reasons were entered in the register on 30 May 2003. Mr Smyth-Britt's complaint was that his employers, Chubb Security Personnel Ltd ("Chubb") had taken action against him on grounds relating to his union activities, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 . The Employment Tribunal dismissed this complaint. Against that decision Mr Smyth-Britt appeals. The Facts[2]Mr Smyth-Britt was employed by Chubb as a supervisor. Chubb provides security services to businesses. It employs a workforce which on a day-to-day basis will attend a business with which it has a contract to provide a security service. Contracts may come and go, so there was a mobility term in Mr Smyth-Britt's contract of employment, the more recent version of which was:
"…the company reserves the right to assign you to work on any sites within reasonable travelling distance from your home and you should be aware that you may be reallocated to a different place of work at any time."
[3]From the very beginning Mr Smyth-Britt worked at RS Components Ltd in Corby ("RS Components"). He was happy there. He was with people he knew and liked. However, in November 2002 Chubb moved him away. He did not lose any money but he lost his status as a supervisor and was moved to a less congenial site away from his colleagues. There was nothing he could do about it – not even an effective grievance procedure. Why did this happen?[4]Mr Smyth-Britt was Branch Secretary of the TGWU. Chubb had raised not the slightest complaint about this. They let him engage in trade union activities on an ad hoc basis during breaks and meal times while he was working at RS Components. Chubb knew he did this. Chubb did not complain.[5]In October 2002 RS Components and Chubb discussed an arrangement which would have involved Chubb employees, including Mr Smyth-Britt, taking over some work from RS Components' employees. Mr Smyth-Britt and two colleagues raised grievances. They were heard on 8 November. A trade union representative was invited. Chubb apologised for failing to consult its employees and said it was in negotiations for increased remuneration. The meeting ended amicably. There is nothing to suggest Chubb had any objection to union involvement.[6]However, just a week later, on Friday 15 November 2002, Chubb told Mr Smyth-Britt that RS Components had requested that he be removed from working at any RS Components site. Chubb asked him to report on Monday to its control room. The following week they assigned him to a new job. He protested and raised a grievance.[7]By letter dated 21 November Chubb confirmed to Mr Smyth-Britt that from the company's perspective he was not under disciplinary action of any kind. Chubb confirmed that they had been requested by RS Components to remove him from their site. The letter continues:
"The reason that we were given by R.S. Components for their request to remove you from their site was that on the 9/10 th November, during working hours and without our approval (nor indeed that of R.S. Components) you approached a number of their staff attempting to recruit them into the Transport and General Workers Union."
The letter goes on to say that Chubb had not authorised him to carry out such activities. The letter concludes that his complaint does not justify a grievance.[8]Mr Smyth-Britt denies that he sought to recruit RS Components' staff into the TGWU. On the contrary; he says his advice was sought by them and he told them that USDAW was the recognised union for their site and they should contact its branch secretary or a local official. The Tribunal so found. RS Components, of course, were not a party to the proceedings before the Tribunal. The fact, however, is that no complaint is or can be made of the conduct of Mr Smyth-Britt.[9]The Employment Tribunal heard evidence from various witnesses including Mr Pollard, Chubb's Contract Manager, and Mr Campbell, its Regional Personnel Manager. The Employment Tribunal found that Chubb was threatened with loss of the contract if Mr Smyth-Britt was not removed from the site.[10]The Employment Tribunal found that Mr Smyth-Britt was subjected to a detriment by Chubb in three ways: he was demoted, he was moved to a less congenial site, he was not allowed adequately to ventilate his grievance. The Employment Tribunal then says: 9 "The Tribunal finds that the person who may have had the purpose of preventing or deterring the Applicant from taking pat in the activities or [sic] an independent trade union or penalising him for doing so was RS Components and not his employer, the Respondent. The Respondent's purpose was to retain the contract with RS Components, despite the detriment to the Applicant; it was not for the purpose of deterring him or preventing him or penalising him on grounds related to trade union activities. There are no provisions in the Act analogous to those in race and sex discrimination legislation such as, for example, statutory liability for aiding unlawful acts. If they are not so included it is beyond the remit of this Tribunal to insert them."[11]In the result, Mr Smyth-Britt has suffered an injustice for doing his proper job as a trade union representative. If Chubb had lost its contract under pressure from RS Components Chubb equally would have suffered an injustice. The 1992 Act[12]By section 146 (1) of the Trade Union and Labour Relations (Consolidation) Act 1992 : 146 (1) "An employee has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the purpose of - (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (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, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions." By section 148 (1) of the 1992 Act: 148 (1) "On a complaint under section 146 it shall be for the employer to show the purpose for which he acted or failed to act."[13]We note also that there are provisions in section 148 (2) and section 150 which concern pressure by a third party through actual or threatened industrial action. Section 148 (2) provides: 148 (2) "In determining any question whether the employer acted or failed to act, or the purpose for which he did so, no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised." By section 150 (1): 150 (1) "If in proceedings on a complaint under section 146 - (a) the complaint is made on the ground that the complainant has been subjected to detriment by an act or failure by his employer taking place for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and (b) either the complainant or the employer claims in proceedings before the tribunal that the employer was induced to act or fail to act in the way complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, the complainant or the employer may request the tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings." Where such a person has been joined or sisted as a party to proceedings the Employment Tribunal may order that compensation under section 149 be paid by that person instead of the employer or partly by him and partly by the employer.[14]These provisions are derived from the Employment Act 1982 which added them to what was then Part II of the Employment Protection (Consolidation) Act 1978 . Submissions[15]As we have said, the key finding of the Employment Tribunal is that Chubb's purpose was to retain the contract with RS Components, despite the detriment to Mr Smyth-Britt, and not for the purpose of deterring him or preventing him or penalising him on grounds related to trade union activities.[16]It is this central finding of the Employment Tribunal which Mr Carr submits contains an error of law. He submits that on the facts if the Employment Tribunal's conclusion was correct it would circumvent the protection given to vulnerable trade unionists under section 146. The true reason, he submits, for Mr Smyth-Britt's removal must be his trade union activities.[17]He submits that the Tribunal have confused purpose and effect. RS Components, he says, wished to prevent Mr Smyth-Britt from taking part in trade union activities on their site. In order to retain their contract Chubb had to act in a way which would deter him from such activities on that site. That was the whole purpose of their moving him. Chubb, he submits, fell into line with the purpose of RS Components. They moved him for the purpose of preventing or deterring him from taking part in trade union activities. Mr Carr relied on Department of Transport v Gallacher [1994] ICR 967.[18]Further, or alternatively, he argued that the Employment Tribunal should here have found that there was a duality of purpose on the part of Chubb; that is to say, both to keep the contract and to deter union activities. Such a duality of purpose is, he submits, caught fairly and squarely by section 146.[19]On behalf of Chubb Mr Cameron submits that the Employment Tribunal's decision was correct and contains no error of law. They were right to concentrate on the employer's main purpose. The phrase "for the purpose of" directs an Employment Tribunal to consider the main purpose of the employer. He says there is no error of law in the decision.[20]In the course of argument we raised with Mr Carr the provisions of section 148 (2) and section 150. Mr Carr accepts that they are included in the Act to deal with a particular kind of third party pressure. It does not, however, he says, follow that where there is third party pressure of a different kind the employer's purpose must necessarily be found to be legitimate if it falls in line with that third party pressure. Our Conclusions[21]In our judgment the purpose to which section 146 (1) refers is the purpose of the employer. It is common ground that Chubb was the employer. There is no extended definition of employer or employee for the purpose of section 146 (1): see section 295 (1). In our judgment the Employment Tribunal rightly concentrated on Chubb's purpose.[22]In Department of Transport v Gallacher a busy trade union official applied for promotion to the grade of Senior Executive Officer. He was told by the promotion board that he needed to demonstrate his ability to do managerial work before he could be promoted; but if he undertook a line management job he would have to reduce his union activities. The Tribunal in that case held that his employer had taken action against him for the purpose of deterring him from taking part in the activities of an independent trade union. The appeal was allowed in the Employment Appeal Tribunal.[23]The Appeal Tribunal's decision was upheld in the Court of Appeal. It was held that the Industrial Tribunal had misconstrued the word "purpose". Neill LJ observed that the crucial issue in the case was the employer's criticism that the Tribunal did not distinguish between effect and purpose. He emphasised that it was important to adhere strictly to the words of the statute. He said:
"In my judgment, in this context "for the purpose of" connotes an object which the employer desires or seeks to achieve."
[24]We do not think the Employment Tribunal fell into error in this case. The Employment Tribunal concentrated on the purpose of the employer. It heard evidence from the employer's witnesses. It expressly found that it was not their purpose to prevent or deter Mr Smyth-Britt from his union activities. It found that Chubb's purpose was different from that of RS Components. There was, in our judgment, no error of law in that conclusion. Even if the effect or consequence of what Chubb did was to prevent or deter union activities by Mr Smyth-Britt, it does not follow that this was its purpose.[25]We reject the alternative submission that the Employment Tribunal should have found that Chubb was in breach of section 146 on the basis that Chubb had dual purposes. The wording in the statute is "for the purpose of". It is important to adhere to the wording of the statute. In our judgment the statute invites consideration of the main or principal purpose of the employer. In this case there was ample justification for the conclusion of the Employment Tribunal that Chubb's purpose was not to prevent or deter Mr Smyth-Britt but rather to retain the contract with RS Components.[26]The conclusion we have reached is, in our judgment, consistent with section 148 (2) and section 150 of the 1992 Act. There is a pithy summary of the effect of these provisions in Harvey on Industrial Relations and Employment Law, Issue 159, at section N 733-734: (i) " Pressure to victimise [733] If the employer's true purpose in victimising the employee was to avoid trouble with a trade union, then he is not allowed to say so. No account is to be taken of any pressure exerted on the employer by way of the threat or use of industrial action, and the tribunal has to decide the case as if there were no such pressure (s 148(2)). The effect is that, in these circumstances, the employer loses as against the employee. He is directed to prove his purpose (s 148(1)), but he is gagged when he tries to do so (s 148(2)). The tribunal has to assume his hand was not forced by the union, and on the basis of that fiction the inference is inevitable, that the employer was victimising the employee on union grounds. That is an inference which the employer is unable (because of s 148(2)) to rebut. Therefore the employee wins. [734] But that is only half the story. In a case like that, the employer (or the employee) can have the union joined as third party (s 150(1)), and, although as between the employee and the employer the latter is condemned and has to pay compensation in full, nevertheless, the employer can then turn round and seek a contribution or indemnity from the union in respect of the compensation paid (s 150(3))."[27]That passage helpfully summarises the essential features of the statutory provisions. It does not set out all the qualifications in them. For example, the provisions of section 150 apply only to a complaint under section 146 (1) (c). We point out also that under section 150 (3) the Tribunal may order that the compensation shall be paid by the person joined instead of by the employer. The employer is not restricted to seeking an indemnity or contribution.[28]Where section 148 (2) does not operate there is nothing to prevent an employer who is placed under pressure from proving his true purpose. That is what Chubb, on the Employment Tribunal's findings, did here.[29]We return finally to Mr Carr's submission that this approach to the interpretation of section 146 makes in-roads into the protection afforded to trade union membership and activities which are unjust and impermissible.[30]It is certainly true, in our judgment, that this case illustrates the statutory limits upon such protection. It may be thought desirable that a provision along the lines of section 150 should be available to allow the joinder of those who bring pressure to bear on employers, whether or not the pressure relates to industrial action. But we observe that the Act places the burden on the employer to prove the purpose for which he acted or omitted to act, if he has thereby subjected an employee to a detriment: section 148 (1).[31]An employer who uses third party pressure as a pretext for his own purposes or who works hand in glove with a third party in order to prevent or deter union membership or activities will find section 148 (1) to be an obstacle in his way. An Employment Tribunal is entitled to scrutinise the true purpose of acts or deliberate omissions which have the effect of preventing or deterring union membership or activities.[32]In this case the Employment Tribunal heard Chubb's witnesses. Chubb as an employer had been supportive of trade union activities. This, no doubt, contributed to the Employment Tribunal's acceptance of the evidence of Chubb's witnesses, that its purpose was not to prevent or deter union activities. There was no error of law in its decision. The appeal must be dismissed.