MRS N HAMILTON v ARRIVA TRAINS NORTHERN LTD [2004] UKEAT 0310_04_0408

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0310_04_0408

Case No Appeal No. UKEAT/0310/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS N HAMILTONAPPELLANT

ARRIVA TRAINS NORTHERN LTDRESPONDENT

Before

His Honour Judge Prophet Mrs C Baelz Mr R Lyons

Date 4 August 2004

[1]APPEARANCES For the Appellant MR ANGUS McPHERSON (Solicitor) Messrs Drummond Miller Solicitors 22 Pavement York YO1 9UP For the Respondent MR DAMIAN BROWN (of Counsel) Instructed by: Messrs Pinsents Solicitors 1 Park Row Leeds LS1 5AT SUMMARY Trade Union Rights A section 146 case (1992 Act) where the issue turned on whether certain activities were trade union activities. ET reasoning showed error of law by deciding that it was necessary for the activities to be trade union activities for Mrs Hamilton to be a union representative. Appeal allowed and remitted for rehearing. HIS HONOUR JUDGE PROPHET In September 2003 Mrs Hamilton submitted to the Employment Tribunal at Leeds a complaint that her employer had taken against her action short of dismissal on the grounds of union membership/activities, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act").

[2]She identified in her Originating Application 20 June 2003 as being the date when the matter she was complaining about took place. It was on that date that she was disciplined by being demoted for what the employer found to be a breach of their cash regulations. She subsequently appealed internally in respect of that matter but her appeal was turned down.

[3]She maintained that first she should not have been subjected to discipline at all for what she had done and secondly, that the penalty of demotion was too severe. Thirdly, she added a further matter in the Originating Application that she had not been provided with current internal job vacancies. All these matters she alleged to be detriments which contravened section 146 of the 1992 Act.

[4]In their Notice of Appearance the employers resisted the complaint maintaining that they had dealt properly with the disciplinary matter and that neither Mrs Hamilton nor her representative had raised her involvement with trade union matters during the disciplinary process.

[5]Section 146 (1) of the 1992 Act reads as follows:

"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."

In cases of this kind, an Employment Tribunal may have to infer a purpose falling within the above section rather than having direct evidence of the employee having such a purpose. In subsection 1 (b) there is a definition of an appropriate time. It may be noted too that section 148 (1) of the 1992 Act says:

"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."

[6]Mrs Hamilton's complaint was dealt with by an Employment Tribunal sitting at Leeds on 28 October 2003 and 13 January 2004, followed by a reserved decision. Mr J Shulman was the Chairman and Ms L Atkinson and Mr R A Hails were the lay members. Mr McPherson, solicitor, represented Mrs Hamilton and the employer was represented by Mr Titchmarsh, solicitor.

[7]The Employment Tribunal unanimously found that Mrs Hamilton had not been subjected to a detriment in contravention of section 146. A somewhat carelessly drafted Notice of Appeal was submitted by solicitors acting for Mrs Hamilton which was ordered by Cox J in chambers to go forward to a full hearing before this Tribunal, with the Notice of Appeal duly amended. We are constituted today to conduct that full hearing. Mr McPherson again represents Mrs Hamilton and the employer is represented by Mr Brown of Counsel.

[8]The Employment Tribunal found, without difficulty, that Mrs Hamilton had suffered a detriment by being disciplined and demoted. They also considered a further detriment, that is to say disparate treatment, as between herself and her son. The matter of the failure to provide her with current internal vacancies does not appear to have been pursued.

[9]It was common ground before the Employment Tribunal that Mrs Hamilton was, at all material times, an active member of the RMT Union. Furthermore, she had been a staff representative for the union until October 2000 when her promotion to a station coordinator gave her a management position, and as a consequence of that she ceased to be a representative. Nevertheless, the Employment Tribunal found that she had engaged in a number of activities after October 2000 and the question arose as to whether those could be classified as trade union activities.

[10]It is apparent from the way that the Employment Tribunal set out its reasons that the Employment Tribunal regarded those matters as not being trade union activities because she was no longer a staff representative for the union. The appeal centres on the proposition that that is wrong and that the Employment Tribunal should not have discounted those activities on that basis alone.

[11]The Employment Tribunal at paragraph 5 (e) of their reasons expressly state that they took account of the length of time since she ceased to be a staff representative and therefore did not carry out trade union activities after October 2000, in deciding whether, as the Employment Tribunal put it, she failed to dislodge the purpose for the detriment. It is submitted on her behalf that if those activities (or some of those activities) should have been regarded as trade union activities, the decision which the Tribunal ultimately reached might have been different.

[12]There does not seem to have been a great deal of authority, certainly in recent times, which bears directly on what are and what are not trade union activities. Mr Brown, who has considerable experience in this area, has however indicated to us that he accepts that making a decision on a matter of that kind is not solely dependent upon whether the person undertaking those activities is or is not a formal representative of the union.

[13]It seems therefore to us that there is a difficulty arising from this case in that the Employment Tribunal ought to have considered the matters which they set out as occurring after October 2000 in order to have decided whether, on the submissions put to them, any of these were or were not trade union activities. Since a decision on that matter would then bear upon what they were having to examine, i.e. what was the purpose of the detriments which occurred for Mrs Hamilton in June 2003, this judgment is correspondingly unsafe and we should allow the appeal.

[14]We have considered with care the argument put forward by Mr Brown that this particular matter could be remedied by putting some specific questions to the Employment Tribunal which decided the case and requesting it to answer them. But on balance we think Mr McPherson is right in saying that that would not be an appropriate course. We have concluded unanimously that the right course to take, having allowed the appeal, is for the matter to be remitted for rehearing before a differently-constituted Employment Tribunal.