MR R YEWDALL v THE SECRETARY OF STATE FOR WORK AND PENSIONS [2005] UKEAT 0071_05_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0071_05_1907Case No Appeal No. UKEAT/0071/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R YEWDALLAPPELLANTTHE SECRETARY OF STATE FOR WORK AND PENSIONSRESPONDENT
Before
Mr Justice BurtonSir William Morris Kbe Oj Mr T StanworthDate 19 July 2005
[1]APPEARANCES For the Appellant MR ALEX RUSSELL Free Repesentation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ For the Respondent MR RICHARD POWELL (of Counsel) of Messrs DLA Piper Rudnick Gray Cary UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL SUMMARY Trade Union Membership Appellant's claims pursuant to s146 TULRCA 1992 in respect of acts to his detriment for the purpose of deterring or penalising trade unions activities dismissed by ET. The ET was entitled to find the bulk of the acts out of time, either by reference to 'continuing act' ( Hendricks ) or as not forming a 'series of similar acts' (and there was no appeal in respect of reasonable practicability). As to the one act found in time, the Tribunal found that A was not carrying out union activities, and did not address the onus of proof as to R's purpose under s148. Held that, it is necessary for a claimant under s 146 to establish a prima facie case of a purpose relating to trade union activities so as to shift the burden of proof to R, and there was none such here. Adjourned ph as to unfairness of ET by virtue of inadequate time for preparation of closing submissions dismissed . THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Mr Robin Yewdall from the unanimous decision of the Employment Tribunal at London (Central) after a hearing on 15-18 June 2004, by a judgment sent to the parties on 19 July 2004, dismissing his claim that he had been subjected to a detriment for taking part in trade union activities pursuant to Section 146 of the Trade Union and Labour Relations Consolidation Act 1992 ("TULR(C)A").[2]The factual history is set out by the Tribunal in paragraphs 28-78 of its judgment and that shows that Mr Yewdall, the Claimant, held three positions on behalf of the Respondent relevant to the circumstances in this case. He was fire safety officer, estate liaison officer and local health and safety officer, and in relation to matters the details of which do not concern us he was particularly concerned about the risks caused by the presence of asbestos. In the events which took place in 2000 and 2001, he felt that he was getting insufficient support from his employers in relation to enunciating those concerns, which he felt ought to have been more fully considered and, in particular, disclosures in relation to which, in his view, ought to have been more widely made, both to the trade union representatives and also outsiders.[3]Events are recounted by the Tribunal in its findings between 1999 and 2003, and the Claimant made a number of allegations that he was being, as he put it, harassed or bullied by various representatives of the Respondent. He made a complaint, in particular, to the Respondent about the behaviour of a Ms Alison Parr, and that was the subject matter of a Notification of Complaint on the ground of race, sex, disability and other equal opportunities issues made in January 2001. The substance of the complaint was set out as follows under the heading:
"Please state how you were harassed, bullied or discriminated against": "
I am ordered not to talk to a person, the site landlord, about matters affecting the health and safety of BA staff. My liaison role and my health and safety duties are included in my job description. Please see attached papers".[4]That grievance took some time to be dealt with and he complained about the outcome of the investigation. He then made a complaint about the, as he saw it, inadequately addressed grievance. In February 2003, a Ms Rolfe was nominated as the nominated grievance officer and a grievance hearing was held in front of Ms Rolfe on 3 June 2003, and minutes of that lengthy hearing were in detail before the Tribunal. They were, apparently, taped minutes and therefore there was no issue as to their content. The Tribunal recorded in paragraph 77 that Ms Rolfe had set out the outcome of the investigation in a memorandum dated 25 July 2003, which is there set out in full. Ms Rolfe concluded, having considered all the available evidence carefully, as she put it, that she did not consider that there were any grounds to allow the grievance. In her view, the investigators undertook a thorough and diligent investigation and the conclusions that they reached were entirely reasonable and supportable. "In particular, I do not consider that Mr Yewdall has been treated unfairly, nor that there was a failure to take account of crucial evidence. I also do not consider that there is any new evidence that changes the conclusions that the investigators reached. I have decided therefore that the investigators' decisions should stand".[5]There is, by s44 of the Employment Rights Act 1996 ("the ERA") an express right for an employee not to be subjected to any detriment by reference to taking a stand on health and safety issues. S44 reads as follows: "44. - (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that- (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee- (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee" and there are further similar provisions.[6]The Claimant made no complaint by reference to s44 of the 1996 Act. He did, however, bring an Originating Application on 8 July 2003, and another on 18 September 2003, which made complaints, effectively, of breach of contract. By the revised consolidated Originating Application of 5 November 2003, he put that claim on the basis of causing a detriment because of lawful activities as a trade union member, and at a directions hearing before Mr Buckley, as chairman, on 7 January 2004, the Claimant confirmed that the only complaint which he was pursuing was that under s146 of TULR(C)A.[7]That section reads in material part as follows:
"(1). A worker 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 sole or main purpose of (a)…. (b) preventing or deterring from him taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so. (2). In subsection (1) "an appropriate time" means (a) a time outside the worker's working hours, or (b) a time within his working hours 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 and for this purpose "working hours" in relation to a worker means any time when, in accordance with his contract of employment….he is required to be at work"
. There is a time limit for this, as for any other claim in the employment tribunal, specified by s147 of TULR(C)A. "(1). An employment tribunal shall not consider a complaint under section 146 unless it is presented (a) before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where the act or failure is part of a series of similar acts or failures (or both) the last of them, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period within such further period as it considers reasonable". By s148, a specific provision is made with regard to the onus of proof: "(1). On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act".[8]The Tribunal heard from the Claimant who gave evidence by means of a written statement. He also produced witness statements from five named people, although they did not attend to give evidence. The Respondents called five witnesses, again having previously served witness statements, one of whom was Ms Rolfe, to whom we have referred.[9]Having set out the findings of fact, the Tribunal summarised the submissions in paragraphs 79 and 80 of their Judgment by reference only to the Skeleton Argument that had been produced for the Respondent and the written opening statement and written closing submissions prepared by the Claimant, as supplemented orally by him.[10]The Respondent below was represented by a solicitor, Mr Coulson. Before us today, the Respondent has been represented by Mr Powell of Counsel. The Claimant represented himself below. He is plainly a very able and fluent speaker and, what is more, had prepared a good many and lengthy documents, some of them by spreadsheets and in schedules. It is plain that he would have wished for more time than he was in fact given by the Tribunal, and we shall return later to that point, but that, subject to that, he gave the fullest and best account he could have given of himself to the Tribunal and, indeed, before us, has written in from time to time to supplement the submissions of Mr Russell of Counsel, who has appeared for him, as provided by the Free Representation Unit.[11]The Tribunal set out the law in paragraphs 81 to 83 of the Judgment. S148 was not included in that summary of the law. It then recorded its conclusions in paragraphs 84 to the end: first of all by reference to what it calls the issue of jurisdiction - that was the time point that was understandably made by the Respondent in relation to events that straddled some three years; and then with regards to what it calls the substantive claims. The finding it made, so far as time is concerned, was by reference to Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96 , and in particular the judgment of Mummery LJ in the Court of Appeal in that case when he said: "The question is whether there is an act extending over a period, as distinct from a succession of unconnected or isolated specific acts" and at paragraph 91 it recorded that: "it is clear from Hendricks that the Tribunal must look at the substance of the matters complained of" and it addressed the Further and Better Particulars supplied by the Appellant. It also addressed the question of reasonable practicability. There has been no challenge by Mr Russell on behalf of the Appellant to the findings of the Tribunal so far as concerns the following:(1) The finding that there was no continuing act on an application of Hendricks , such as to bring in the acts between 2000 and 2003 on the basis of there being effectively one continuing act extending over a period;(2) In so far as it related to the Tribunal's conclusions that, if the acts were otherwise out of time, it was reasonably practicable for the Appellant to have presented claims within the prescribed time limit. No appeal is brought against the conclusion that the Appellant had put forward no reason why he could not present his claim earlier.[12]The Tribunal found that the events or acts prior to 2003 were out of time and that the only matter that was in time related to the Claimant's complaint in relation to the resolution of his grievance by Mrs Rolfe in June 2003. So far as that was concerned, that was found to be in time, but all the earlier matters were out of time. The complaint by way of appeal brought by Mr Russell on Mr Yewdall's behalf is that the Tribunal erred in allegedly failing to consider the issue as to whether the earlier acts could be said to form part of a series of similar acts of which the inadequate dealing, if such it was, with the grievance was the last such act. If such were the case, then s147 (1) (a) ought to have compelled the Tribunal to rule that the earlier acts, or those relevant to the argument, were in time.[13]Before us, Mr Russell has identified, with the express assistance of the Appellant, the following five acts as the acts which are relied upon as forming part of a series of similar acts of which the sixth, namely the allegedly inadequate dealing with the grievance by Ms Rolfe, was the last. Those five are as follows, and we take them from the Further and Better Particulars served by the Appellant to which we referred earlier which are, and were, in very schematic form. "Alison Parr 24/7/2000 – objected to my attending; objected to my talking to TU [Trade Union] side. 27/7/2000 – ordered me not to tell other people about the asbestos danger. 15/9/2000 – ordered me not to talk to Hadens about asbestos. 25/1/2001 – objected to my talking to the Landlord. 02/2001 – gave me an adverse promotion report". - this last is explained by reference to the report having been on a date in February 2001. It is those five acts, and those five alone, which were contended before us by Mr Russell and the Appellant to form part of a series and to constitute the error which the Tribunal then committed in not linking those in the series together with the alleged failure by Ms Rolfe. Those six acts are said to be acts which ought to have led to a finding in favour of the Appellant under s146 of the Act.[14]So far as detriment is concerned, that was put forward on a very general basis by the Appellant, listed at what is described as page 107 of the bundle in paragraph 93 of the Tribunal's Judgment. What is there said is as follows:
"Mr Yewdall lists his detriments at page 107 of the bundle. The detriments listed are as follows": and it recites what Mr Yewdall said in that schedule, which concluded: "
These detriments flowed from my treatment by the management and HR department, their failures to act to protect me, and their deliberate obstruction of my complaints contrary to departmental rules and procedures because of my good relationship with PCS" [that is the Union in question]. There is some recovery from these injuries, but I do not know what the long-term damage may be".[15]The list of detriments included damage to his promotion prospects, dated as 8 March 2001 (so far as relevant to the February 2001 report, presumably) and listed general matters such as anxiety and sleepless nights, distress and embarrassment, poor health and exhaustion and he also used general words such as "harassment" and "bullying" which, strictly speaking of course, would not be detriments themselves but would amount to acts, if they were particularised.[16]The Tribunal lists the matters which the Appellant relied upon as being trade union activities at an appropriate time in paragraph 96 of the Judgment, having recorded in paragraph 95 the fact that the Appellant was not an official of the Trade Union nor, indeed, held any relevant capacity in that Union, but was merely a member.[17]Of the list of 18 examples of trade union activities at an appropriate time, set out by Mr Coulson for the Respondent as being drawn from the evidence that the Appellant gave before the Tribunal, Mr Russell and the Appellant has, before us, identified with only some 10 of them. It is accepted that at least four of them relate to a period when, together with other employees, the Appellant was on strike and are consequently not relevant.[18]The trade union activities at an appropriate time so alleged, remaining relevant before us, are as follows: "10.1 Being known to communicate honourably with the PCS about important matters. 10.2 Customarily keeping all parties including trade union side well informed. 10.3 Asking the trade union side for their views and telling them what actions he was considering on many occasions. 10.4 …….. 10.5 Including a question from the trade union side in a minute to Alison Parr dated 21 June 2000. 10.6 ……… 10.7 Including trade union concerns about asbestos in an assessment dated 9 August 2000. 10.8 Trade union side asking the applicant to examine and comment on issues. 10.9 …….. 10.10 Referring information on the removal of security screens to the trade union side on 16 November 2000. 10.11 Trade union asking the applicant to examine Pathfinder documents in May 2001. 10.12 Agreeing to attend as an expert for the trade union at their meeting on 20 June 2001".[19]The conclusions of the Tribunal are set out in the following paragraphs:
"97. None of these matters amount to activities of an independent trade union in accordance with Dixon and Shaw v West Ella Developments Ltd [1978] IRLR 151 which held that these matters should not be interpreted too restrictively. The activity must have a connection with the union. Drew v St Edmundsbury Borough Council [1980] IRLR 459 EAT found that raising health and safety matters did not amount to the activities of an independent trade union. Mr Yewdall was not the union official who was delegated with the role of Union health and safety representative. His role was to represent the Respondent on health and safety matters. It is only union business which is protected by the provisions of Section 146. The matters about which Mr Yewdall complains do not amount to trade union activities and even if they did, they were not 'at an appropriate time'. A number of the matters were during the strike which, of course, was not with the Respondent's consent. None of the matters about which Mr Yewdall complains were trade union activities nor were they at an appropriate time. He therefore does not have the protection of the provisions of Section 146. 98. The only claim that Mr Yewdall has that is within time is in relation to the appeal by Ms Rolfe [that should be the appeal to Ms Rolfe] and that is nothing to do with trade union activity nor is it at an appropriate time. It is therefore the unanimous decision of the Tribunal that that claim must fail. 99. Even if the Tribunal is wrong on the issue of jurisdiction in relation to all other claims, it would be the unanimous decision of the Tribunal that Mr Yewdall has not shown that he was engaged in trade union activities at an appropriate time and accordingly, his claims would fail."
[20]Mr Powell has submitted that the proper construction of s146(1)(b) is as follows, with the caveat to which we will refer in a moment. He submits that it is necessary before a worker can succeed under s146(1)(b) that he should establish, the onus being upon him, that he was taking part in the activities of an independent trade union or intended to do so. Dissecting s146(1)(b) - this is where we bring in the caveat - he exempts from that submission the words "deterring". But he submits that if the claim by the worker is that he has been subjected to a detriment as an individual by an act by his employer, where the act or failure was for the sole or main purpose of preventing him from taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so, then he must first establish, the onus being upon him, that in the case of "preventing", he was intending to take part in the activities of an independent trade union, or in the case of "penalising", he had taken part in the activities of an independent trade union. He accepted that that was not a construction that he put forward or that would be appropriate in relation to "deterring", where, he submitted, it would be possible for an employer to offend against s146(1) if it had taken some action which deterred from taking part in trade union activities a worker who had never thought of doing so and did not have an intention of doing so and had never done so.[21]We clearly were impressed by the approach of Mr Powell, who worked hard at establishing this argument. There is a very real difficulty, in our judgment, in construing a subsection (in the way that he has felt compelled to do) so as to make it mean something different and, indeed, worse, to operate in a different way, depending upon which of three alternative verbs, all falling within the subparagraph, applies to the case, and he recognised that difficulty. We do not conclude that Parliament can have intended the onus of proof to operate differently depending upon which route was taken in relation to preventing or deterring or penalising.[22]We also conclude that s148 has a part to play, and that it must not be ignored that the onus of proof of showing what its purpose was is on the employer. We are satisfied also that if the statute had been intended to mean that which Mr Powell submits, the wording would have been the reverse of what it is. At present, it imposes a right on a worker not to be subjected to any detriment as a result of acts by employers, and it sets out the purpose that is thus rendered illegitimate and ends with a definition of that purpose. If it had been the intention of the legislature that there was no cause to investigate the issue of acts, detriments, failures and purposes if there was no actual participation in trade union activities or no actual intention, then, in our judgment, the statute would have been set out differently, namely "in the event that" or "if a worker has participated or intends to participate in trade union activities, then…". We are satisfied that this is not the proper construction of the statute.[23]We nevertheless find that, although clearly this is not necessarily a binding way for a tribunal to approach this statute, a very sensible way to do so would be to follow this structure which, in effect, follows the route of the Act as we see it to be: (i)Have there been acts or deliberate failures to act by an employer? On this, of course, the employee has and retains the onus; (ii)Have those acts or deliberate failures to act caused detriment to the employee? We then interpose a cross-reference to s147 because it appears to us that this is a sensible time to do so: (iii) Are those acts in time? (iv) In relation to those acts so proved which are in time, where detriment has been caused, the question of what the purpose is then arises. We are satisfied that Mr Russell was right to concede - and, in any event, this is our judgment - that there must be establishment by a claimant at this stage of a prima facie case that the acts or deliberate failures to act which are found to be in time were committed with the purpose of preventing or deterring or penalising i.e. the illegitimate purpose prohibited by s146(1)(b).[24]This gives the same mechanism to sections 146 and 148 of TULR(C)A as is provided, for example, by section 63A of the Sex Discrimination Act 1975 , where the onus of proof only passes to the employer after the establishment of a prima facie case of unfavourable treatment on discriminatory grounds by the employee which requires to be explained. Once it requires to be explained, then the burden passes to the employer. Plainly that, in our judgment, is correct in this case. Otherwise the employer will have the burden of giving some explanation in a case where it is not clear what it is he has to explain. It must be clear, and we agree with Mr Russell's concession and with Mr Powell's submission, that there is a case made out at the prima facie stage that the acts complained of, with the resultant detriment, were on the case for the claimant for the purpose of preventing or deterring or penalising in respect of trade union activities. Once that prima facie case is established, then the burden passes to the employer under s148.[25]We turn to this case. The acts (because they are all acts, and not deliberate failures to act) relied upon prior to the adjudication by Ms Rolfe were all, in a short passage of time as we have recited them, at the end of 2000 and the beginning of 2001. There were then no further acts relied upon for this purpose until the June 2003 revival, if such it was, of what would otherwise be out of date claims, as Mr Russell concedes. All other claims, including those which are not alleged to be revived by the Rolfe adjudication would be out of time if not revived by the Rolfe adjudication and, of course, from that point of view, the Rolfe adjudication itself must qualify as an act within s146.[26]The Tribunal correctly recited s147(1)(a) in paragraph 81 of its Judgment, including the alternative basis of finding jurisdiction, namely that the act or failure was part of a series of similar acts or failures. The conclusion to which the Tribunal came is set out in paragraph 91, after the consideration of Hendricks , and after reference to the Further and Better Particulars supplied by the Claimant: "91. These are a number of disparate acts. They are not connected and cannot be said to form part of a continuing act. Everything that pre-dates 9 April 2003 is out of time. Mr Yewdall has put forward no reasons as to why the Tribunal should extend time. Everything that pre-dates 9 April 2003 in the first Originating Application and that pre-dates 19 June 2003 in the second Application is out of time".[27]As we have indicated, there is no complaint about the finding by the Tribunal that the "not reasonably practicable" defence and the "continuing act" argument were not well founded. But Mr Russell submits that the Tribunal either failed to consider or, at any rate, inadequately dealt with the issue of the series of similar acts. It is right to say that the Tribunal does not repeat in paragraph 91 the reference to section 147(1)(a) which it made 10 paragraphs earlier, but it is difficult to see that in 10 paragraphs, the Tribunal can have put that subsection out of its mind.[28]Mr Russell has referred us to two authorities on the issue of a series of acts, although he accepts that there is little in the law books on the definition of the word "series". The first such authority is Adlam v Salisbury & Wells Theological College [1985] ICR 786 and the other is Group 4 Night Speed Limited v Gilbert [1997] IRLR 398. Mr Powell has produced extracts from dictionaries. It appears to us that there is not a great deal of help to be gained from dictionaries or from authorities. The words are relatively clear. What is required to be shown is a series of similar acts. Mr Powell made the submission, by reference to Group 4 Night Speed Limited , that when one is addressing in similar legislation (in that case under what was then the Wages Act ), where there are so many different kinds of unlawful deductions of wages that can be found, the need for the series of deductions to be similar indicates that it is not simply their unlawfulness which is going to create the similarity, and we agree. Thus, acts which are all capable of amounting to breaches of section 146 are not, for that reason or, indeed, for the reason that they cause detriment, similar. They must be, in our judgment, similar by way of nature. In this case, what is alleged, as we have recited by reference to the Further and Better Particulars, is that there was positive action by Ms Parr in 2000, both restricting his conduct and communication with others and giving him an adverse promotion report. What is complained of, and it is complained of in only very general terms in relation to Ms Rolfe, is put in his witness statement as follows: "In the end…Mary Rolfe as nominated grievance officer, has made an unsupportable decision rejecting my Appeal against the rejection of my complaints. I claim that the evidence shows this decision to be an error of the law and the facts and to be not a decision that a reasonable person would make after taking all the evidence into account. During the process of hearing my appeal about the decision which rejected my complaints…I raised issues about people who should have been interviewed and evidence which should have been obtained. I provided evidence to show that I had made correct choices and that I had been badly treated. There is no indication that any of this was properly taken into account. The Nominated Grievance Officer's investigation was an obvious whitewash".[29]It is plain, in our judgment, from the setting out of that case how different the complaint was in respect of Ms Rolfe from the allegations against Ms Parr - but, of course, it is not for this Appeal Tribunal to substitute its own judgment. It is, however, against that background that we approach what the Tribunal did say in paragraph 91 in relation to the matters, which we have already recited, namely "These are a number of disparate acts". In our judgment, one can substitute the word "series" for "number" perfectly comfortably, and obtain a conclusion that there is a series of acts, but equally the conclusion, with which we see no reason to disagree, and indeed for which we can see every support from the evidence that we have seen, that there was a "series of disparate acts" means, in our judgment, that there was not here a series of similar acts. In those circumstances we conclude that although it may be that there was not express reference to s147(1)(b) in paragraph 91 of the Tribunal's Judgment, (and, indeed, although it followed on from a conclusion that the act was not a continuing act within Hendricks ) the Tribunal did appreciate that it was concluding not only that there was no continuing act, but that also there was a series of disparate acts, and that, in those circumstances, had they positively said that consequently the provisions of s147(1)(b) were not satisfied, that would have been all that was needed; and the absence of such a statement does not flaw their conclusion. If we are wrong in that regard, in any event it is quite clear that no reasonable tribunal could have come, on those findings of fact, to any other conclusion. On that basis, the only complaint that was in time related to that against Ms Rolfe, the nature of which we have recited by reference to the Appellant's witness statement.[30]We turn then to the Tribunal's treatment of that complaint as being presumably an act - as opposed to a deliberate failure to act - in breach of s146. We have recited the Tribunal's conclusions as to the trade union activities upon which the Claimant relies, and the Tribunal's conclusions, in paragraphs 97 and following, that they were not trade union activities.[31]Mr Russell has referred us to a number of authorities on the definition of trade union activities which are, of course, along the lines of those (and possibly the same as those) which were recited before the Tribunal. The first such authority is Dixon and Shaw v West Ella Developments Ltd , to which the Tribunal did make express reference. That made clear, obiter, by reference to the judgment of Phillips P, as he then was, that activities of an independent trade union are not as restricted as the majority of the Employment Tribunal in that case had concluded, and that where an employee contacts his Union on a matter regarding his conditions of work, and the Union then takes some action relating to that employee, the employee can be said to be participating in the activities of an independent Trade Union. Mr Russell referred us also to Drew v St Edmundsbury Borough Council , referred to by the Tribunal, which was a case in which involvement in health and safety matters, on the facts of that case, was held not to amount to involvement in the activity of an independent trade union, but not to rule it out.[32]Lastly, Mr Russell referred to a recent decision of Hamilton v Arriva Trains Northern Limited EAT/0301/04 [unreported] per Judge Prophet, in which the learned judge said, at paragraph 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. [ Counsel for the Respondent ] 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".[33]As we have recited, the Tribunal here for a number of reasons concluded that the Appellant was not taking part in trade union activities. But in the light of our conclusion that Mr Powell is wrong in his construction of the statute, so that in fact it is not necessary or appropriate for a claimant to bear the onus of establishing that he was taking part in trade union activities, the issue must be faced head on that this tribunal did not, on its face, refer to the onus of proof being on the Respondent under s148, and as to whether or not it had satisfied that onus; the issue being whether the purpose with which the Respondent carried out the impugned act - which is now simply the alleged inadequate adjudication by Ms Rolfe, although it putatively could have included Ms Parr's alleged misconduct three years earlier - was for the sole or main purpose of penalising the Appellant for carrying out trade union activities. Ms Rolfe gave evidence, as we have indicated, in which she firmly rebutted such a suggestion. Having explained her role in relation to the grievance procedure and the adjudication and justified it, she said this in paragraph 18:
"Robin made reference to his trade union membership…However, this involvement was of no relevance to my investigation. His trade union involvement did not seem to be of any great significance. He was simply a trade union member as a number of members of staff are. I, myself, am also a trade union member. Robin's trade union membership formed no part of my decision at all."
That, of course, was evidence before the Tribunal which defended the position of the Respondent, compared with the case set forward by the Claimant to which we have referred and if the onus of proof was on the Respondent, and the Tribunal did not, on the face of it, address the onus of proof, then Mr Russell submits there was a flawed decision by the Tribunal. If that is right, then the Tribunal's decision must be set aside, and the only way in which Mr Powell can avoid the matter being remitted to an Employment Tribunal for rehearing would be if this Appeal Tribunal were satisfied that the decision was unarguably right and that any tribunal would have been bound to come to the same conclusion had it applied the right test; this tribunal, if it did, having applied the wrong test.[34]We are satisfied that this case, however, does not reach that stage. We have referred earlier to the conceded position, and rightly so, that the onus only transfers to the Respondent to establish what the purpose was if there is a prima facie case that there was an act in this case, causing detriment, for the sole or main purpose of penalising the Claimant in this case for taking part in trade union activities. Mr Powell has submitted that there is no prima facie case of detriment being caused, because there is no finding to that effect by the Tribunal. We are not satisfied with that argument. If there was a failure by the Tribunal to make findings in relation to detriment, then we should have interfered on that basis alone: and, plainly, the Tribunal sets out at paragraph 93 matters which could have amounted to detriment if sufficiently causally connected with the act complained of. But this Tribunal carefully addressed the question in paragraph 94 as to "whether Mr Yewdall was engaged in union activities and if so, whether this was at an appropriate time". We are satisfied that it was entitled to do so for the purpose of establishing that prima facie there was a case that there had been acts for an illegitimate purpose.[35]There are two ways in which, if the onus transfers to a respondent, the Respondent can satisfy the onus. The first is for the respondent to show that were no trade union activities and consequently, any act they may have taken. deliberate or otherwise, was not for the purpose of preventing or deterring or penalising in respect of them. The second would be, as for example, in the case of Gallagher v Department of Transport [1994] IRLR 231, to which we have been referred by Mr Powell that, notwithstanding that there was an apparent involvement in trade union activity on the particular facts of the case, the Respondent satisfied the onus of showing that it was not the Respondent's purpose to deter, prevent or penalise in respect of such activities, and there is a similar authority in Carlson v The Post Office [1981] IRLR 158. But that all arises once the onus has shifted to the Respondent. Is there an arguable case causing the onus to shift that, in this case, the act by the Respondent was for the sole or main purpose of penalising the Claimant for taking part in trade union activities?[36]The Tribunal analysed carefully the matters set out in paragraph 96, and we have done so again with the assistance of both Mr Russell and Mr Powell. S44 of the ERA, to which we referred earlier, is not a bad starting point, because it makes clear that so far as detriment by reference to health and safety activities is concerned, the worker can complain if he is submitted to such detriment, either when acting for the employer or when acting for the trade union; but in order to bring the case within S146 of TULR(C)A, he must be taking part in trade union activities. It is quite plain that even the way in which the matters are formulated in paragraph 96 (although of course we note that this was not the Appellant's precise formulation), the approach is that he was seen, in his view, by the Respondent as being too friendly towards, or giving too much information to, 'the trade union side'. Mr Yewdall intervened at one stage in the submissions to point out that that is a frequently used expression and, of course, we know that full well – 'the trade union side' and 'the employer side'. But the relevance in this case is that it is clear that he was not on the trade union side; he was on the employer side and he was, in his eyes, being penalised, if he was, by the employer for being too friendly with the other side, being known to communicate honourably with the union, keeping all parties including the trade union well informed, asking the trade union side for their views, including a question from the trade union side in a minute, being asked by the trade union side to do various matters. It is quite plain that he was, on his own case, not acting on the trade union side, but acting on the employer's side and seeing it as his duty or his task to give more information to the trade union side than he believed his employer wished him to do.[37]In this case, in our judgment, the Tribunal was perfectly entitled to come to the conclusion it did that there was no case that the Appellant was taking part in trade union activities. We have referred to 146(2) of the TULR(C)A which defines what is meant by appropriate time and Mr Powell has referred us to the ACAS leaflet on taking part in trade union activities. It appears quite clear to us from those matters and indeed, from the authorities to which we have referred, that there is indeed a blurred line between taking part in trade union activities and not doing so, but that, in this case, acting for the Respondent but giving information to the trade union side, is nowhere near the frontier. In those circumstances, we are satisfied that the Tribunal was entitled to conclude, as it did, that there was no case that this Claimant was involved in trade union activities. If it was entitled so to conclude, then it was also entitled and obliged to conclude, on the facts of this case, that there was no arguable case that the act by the employer, that is in this case, the adjudication by Ms Rolfe, was for the purpose of penalising him for doing that which he had not done. It may be, at its highest, that the Appellant might have had some complaint under s44 of the ERA, but it is, in our judgment, as was said during the course of the argument, putting a square peg into a round hole to suggest that what was occurring here was penalising the Appellant for taking part in trade union activities. The act complained of, in so far as it was in time, was plainly not for that purpose, and the Tribunal was, in our judgment, justified in concluding that there was no case which resulted in the transfer of the burden to the employer. It would, in our judgment, have plainly been more sensible if the Tribunal, having reached the conclusion it did in paragraph 99, had then gone on to say that in those circumstances, "the onus does not transfer under s148". Had it done so, it would have been a much clearer judgment. Its failure to do so does not however, in our judgment, flaw the conclusion of the Tribunal, which was a conclusion to which it was entitled and, in our judgment, obliged, on its findings, to come. In those circumstances, the appeal is dismissed.[38]There is also before us an ex parte preliminary hearing of one further ground upon which the Appellant would have wished to rely in support of his appeal, and which was sent forward on that basis for an adjourned preliminary hearing after the dismissal of various other allegations that the Appellant was at that stage making. This is that he did not have a fair hearing from the Tribunal in this case, chaired by Miss Lewzey. The only basis, at the end of the day, on which it is put, is that he was time limited by the Chairman. It is quite clear to us that in all matters save one, to which we will turn, any time limitation was a pure matter of case management by the Chairman, as to which there could be no possible ground for appeal. The one matter that is raised specifically by Mr Russell on behalf of the Claimant is the fact that when the evidence ended at 12 o'clock on the third day, the Tribunal expected written submissions, or any rate closing submissions, to be addressed to it, giving only at that stage a half an hour pause between the end of the evidence, which had only taken two days, and the start of submissions.[39]The Appellant asked for further time, and the Respondent did not oppose that application; the Appellant was given the rest of the day and was expected to make his submissions the following morning, and he did both produce closing submissions and supplement them orally the following morning.[40]Mr Russell has referred to criticisms that I made in relation to an order that was made by a chairman in Sinclair Roche & Temperley v Heard [2005] IRLR 763. That was a very different case, as, indeed, Mr Russell himself accepted. The evidence ended on Maundy Thursday, after taking a very substantial number of days, and, in relation to very complicated submissions, the Tribunal insisted on having written submissions, covering every topic, on effectively the next working day, namely the Tuesday after Bank Holiday Monday. I concluded, with which my fellow members agreed, that this was a quite inappropriate course to have taken because it gave no sufficient time for preparation of what turned out to be more than 100 pages of submissions, which required very considerable oral supplementation. That was a case which bears no resemblance whatever to this case (which was a relatively straightforward, and certainly a very much shorter case) and although it certainly would have been preferable, in our judgment, if the Chairman had immediately adjourned the matter to the following morning rather than, at one stage, trying to hold the Appellant to a half an hour break, in fact the Appellant had got quite a bit of written submission already prepared, and he was able to deal with it by and on the following day, whereas, in Sinclair Roche , it was apparent that there were large chunks of the submissions with which the Tribunal simply failed to deal. In this case, as Mr Powell points out, there appears to be no consequence from the short time scale to which Mr Yewdall was subjected by the Tribunal which had any effect on the outcome or the fairness of the trial and, as has been quite clear to us, the Appellant, Mr Yewdall, is very able and fluent. We do not conclude that there was any injustice to the Appellant or, indeed, any way in which this appeal was affected or flawed by the shortness of the time which was given to the Appellant to prepare his submissions. In those circumstances, the ground of appeal contained in the adjourned preliminary hearing is dismissed and adds nothing to the substantive appeal with which we have already dealt. Had there been a question of remission to the same Tribunal, if we had been of that view, then the argument, which we have rejected as a substantive ground of appeal, might have been relevant. But for the reasons we have given, we are entirely satisfied that there is no ground whatever to remit this matter to any employment tribunal, and the decision of this Tribunal must be upheld.