MR M W SKIGGS v SOUTH WEST TRAINS LIMITED [2005] UKEAT 0763_03_0703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0763_03_0703Case No Appeal No. UKEAT/0763/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M W SKIGGSAPPELLANTSOUTH WEST TRAINS LIMITEDRESPONDENT
Before
MR COMMISSIONER HOWELL QCMRS M V McARTHURMR D WELCHDate 7 March 2005
[1]APPEARANCES For the Appellant MR OLIVER SEGAL (Of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondent MR CHRISTOPHER WALKER (Of Counsel) Instructed by: Messrs Blake Lapthorn Linnell Seacourt Tower West Way Oxford OX2 OFB SUMMARY(1) An employment tribunal was entitled to hold that an investigative meeting with a manager inquiring into another employee's grievance was not a "disciplinary hearing" at which the applicant had a right to be accompanied under section 10 Employment Relations Act 1999, notwithstanding that the matters to be discussed could lead to some later disciplinary process against him: London Underground v Ferenc-Batchelor [2003] IRLR 252 followed.(2) A tribunal has power under section 172 Trade Union and Labour Relations (Consolidation) Act 1992 to award an appropriate sum as compensation to an individual union official for being deprived of time off for his union duties in breach of section 168 even though no financial or other special loss is claimed or proved, though the principle remains compensation and not punishment: Hardy v Polk (Leeds) Ltd [2004] IRLR 420 and Susie Radin Ltd v GMB and others [2004] IRLR 400 distinguished. MR COMMISSIONER HOWELL QC This is an appeal by Mr Michael Wayne Skiggs, at all material times employed by the Respondent South West Trains Limited as a guard, and also a representative official of the RMT Union which is a recognised Trade Union participating in a company Council with the Respondent on numerous matters. It is against a reserved decision of the Southampton Employment Tribunal issued to the parties on 6 August 2003, unanimously dismissing a complaint by Mr Skiggs under section 11 of the Employment Relations Act 1999 that he had not been allowed to be accompanied at a meeting with a manager inquiring into an allegation against him contained in a written grievance lodged with the Respondent by another employee, and declining to make any award of compensation to him under section 172 of the Trade Union and Labour Relations (Consolidation) Act 1992 when the tribunal found the Respondent had failed in its duty to allow him time off for the purpose of carrying out his union duties.[2]The two main questions we had to consider were if the Tribunal had misdirected itself on whether the nature of the meeting the applicant was asked to attend with the manager inquiring into the grievance was such as to make it a "disciplinary hearing" at which he had a statutory right to be accompanied under sections 10 and 13(4) of the 1999 Act, and further or alternatively on the scope of its power to award compensation under section 172. In addition there was a subsidiary issue on whether, even if the Tribunal had not misdirected itself on the question of compensation, it had acted unfairly in not allowing the Applicant to be recalled to give further evidence in support of that aspect of his case.[3]The facts as found by the Tribunal were that on 5 September 2002 the Applicant had been suspended from duty on disciplinary grounds, leading to his dismissal on 26 September 2002. On 14 October 2002 he was reinstated on terms that instead of being dismissed he would receive a severe reprimand which would stay on his record for four years, coupled with a final warning that he was not to bring on to the Respondent's premises written material such as to cause offence to its other staff. On that basis the Applicant returned to his duties, as a guard based at the depot at Fratton. Immediately after his reinstatement the guards' depot manager there presented an official grievance to the Respondent alleging that the Applicant had been spreading rumours about a relationship between her and another guard at Fratton who was also an RMT representative.[4]A day after that the Applicant was given details in the usual way of the forthcoming depot meetings he would be expected to attend as RMT representative on the company Council for the remainder of October, about a dozen meetings in all at various different depots. Some six days later however, he discovered that on the date fixed for the first of those meetings, 21 October 2002, he had been rostered for normal guard duty instead. After an initial inquiry when this was assumed locally to have been a mistake, he and his fellow RMT representatives were told that the Respondent's employee relations manager, Mr Bunce, had decided in conjunction with superior managers that the Applicant was not to be permitted to undertake any depot visits or take part in Council meetings pending the outcome of the ongoing investigations into the subject matter of the grievance. The meeting on 21 October went ahead without the Applicant being allowed to attend it, but from then on the RMT indicated that none of its representatives would be attending depot or Council meetings unless he was reinstated. This led to an impasse in which none of the further scheduled meetings took place and neither the Applicant nor anyone else carried out their duties at such meetings, until the matter was finally resolved between Union and Management at a higher level and the Applicant was reinstated to his full union duties on 7 January 2003.[5]In the meantime a different manager, Mr Johnston, had been deputed to investigate the grievance and had interviewed the two other people concerned, ascertaining that neither of them felt any animosity or difficulty in continuing to work with the Applicant and that all they really wanted was that any unfounded rumours being circulated should stop, preferably with some form of apology. On 6 November Mr Johnston arranged to have a meeting with the Applicant to discuss the grievance, but the Applicant insisted that the meeting should not proceed and that he would not take part in any discussion at all unless or until he had "appropriate representation" in the form of a full time union official and/or his barrister. A further impasse developed with Mr Johnston indicating that this was just an investigatory interview at which there was no entitlement to representation under the agreed procedure, and the Applicant refusing to answer any questions on the ground that "investigatory interviews were just management's way of interrogating staff" . Mr Johnston repeated on a number of occasions that this was "an investigative meeting at stage one and was not in any shape or form a disciplinary process against the Applicant" : but in the Tribunal's words the meeting did not progress, and it was eventually concluded after approximately one and a quarter hours.[6]On 19 December 2002 Mr Skiggs presented his Originating Application to the Employment Tribunal complaining of action short of dismissal on grounds related to his trade union membership and activities, breach of his right to be accompanied at a hearing contrary to section 10 of the 1999 Act, and refusal to allow him time off work for union duties contrary to section 168 of the 1992 Act. The first of those complaints was withdrawn by consent at the outset of the hearing but the others proceeded before the tribunal, sitting on 10 and 11 July 2003 under the chairmanship of Mr M P Kolanko. In its reserved decision with extended reasons sent to the parties on 6 August 2003 the tribunal dismissed the second complaint and upheld the third, though only to the extent of making a declaration that the respondent had failed to permit the applicant time off for during working hours for his duties as an official of the RMT union: the tribunal specifically declined to make him any award of compensation under section 172 of the 1992 Act. His appeal to us is against the dismissal of the section 10 complaint and the refusal to award compensation under section 172; there is no cross-appeal by the Respondent against the finding that it was in breach of section 168 by failing to allow him time off to attend meetings in his capacity as a union official from 21 October 2002 onwards.[7]We should deal first with a jurisdictional point on the appeal against the section 10 decision which emerged at the preliminary stage, and explains why this appeal originally presented on 1 October 2003 came before us for full hearing only on 31 January 2005. As appears from the order of the EAT presided over by Keith J on 30 October 2003 such an appeal faced an insuperable obstacle if proceeded with at that time as appeals relating to the 1999 Act were then omitted from the jurisdiction of the Appeal Tribunal under section 21 Employment Tribunals Act 1996: Refreshment Systems v Wolstenhome , EAT 2 March 2004. The order therefore provided for the appeal on section 10 to be stayed with liberty to apply to restore it if legislation was introduced which had the effect of retrospectively allowing it to proceed. In fact the legislative timetable took longer than the six months then apparently envisaged, but the remedial legislation in section 38 Employment Relations Act 2004 adding 1999 Act appeals to the EAT's jurisdiction was brought into force on 1 October 2004 (SI 2004 No 2566), and there is no doubt that the appeal was then accepted as duly restored in its entirety, as it was set down for full hearing by order of HH Judge Wakefield on 11 October 2004. In those circumstances although section 38 as actually enacted was not in terms "retrospective", both sides confirmed they wished us to deal with the substance of the appeal on section 10 as well as section 172; and we indicated with their consent that if and so far as necessary we would treat the original notice of appeal as reissued pro forma on 11 October 2004 and waive any remaining time or other procedural defect so as to validate the appeal on both issues and place our ability to deal with it beyond doubt. Right to be accompanied: section 10 ERA 1999[8]The argument on the first issue depends on whether the meeting that took place between Mr Johnston and the Applicant on 6 November 2002 was a "disciplinary hearing" for the purposes of section 10 of the Employment Relations Act 1999, which obliges an employer to permit a worker to be accompanied by a trade union official or co-worker where he so requests if he "is required or invited by his employer to attend a disciplinary or grievance hearing" . By section 13(4):
"(4) For the purposes of section 10 a disciplinary hearing is a hearing which could result in – (a) the administration of a formal warning to a worker by his employer; (b) the taking of some other action in respect of a worker by his employer; or (c) the confirmation of a warning issued or some other action taken."
It was not suggested this could have been a "grievance hearing" within section 13(5).[9]It was common ground before us that "some other action" in section 13(4) means some other disciplinary action, in the form of a sanction analogous to what has gone before. Mr Segal's argument on behalf of the Applicant was that given the degree of formality involved in his being summoned to see Mr Johnston as part of the formal grievance investigation, the focus of that investigation being wholly on an allegation against him, and the close context of the recent disciplinary proceedings and the final warning on his record so the meeting could easily lead to some further disciplinary process and sanction against him, all the conditions of that definition were fulfilled and the meeting fell within it even though not convened as a "disciplinary hearing" in the normal sense. He submitted there was nothing in section 13(4) that required the sanction to result directly from the hearing itself, and the definition was wide enough to include meetings which could lead to such a result only after some further process or hearing that might be triggered by what happened at the meeting.[10]We agree with Mr Segal's submissions to this extent, that whether a discussion or meeting between management and a worker takes on the character of a "disciplinary hearing" within this definition depends on the nature of the meeting itself, and not on the description either or both parties happen to attach to it or its possible consequences: cf. London Underground Ltd v Ferenc-Batchelor and others [2003] IRLR 252. However, as the judgment of the EAT in that case was careful to emphasise at paragraphs 11-12, it is not every meeting that happens to take place between management and a worker which might lead, however indirectly, to some form of action being taken that constitutes a "disciplinary hearing" and it would be absurd to apply the definition in section 13(4) in that way. The EAT there referred with approval to the provisions of the ACAS Code of Practice on disciplinary and grievance procedures, and observed that there was a difference between informal investigative meetings and hearings as part of a disciplinary process:
"It may be that simple investigations may lead on to the need for a disciplinary hearing, but at that stage management will signal a change and the initiation of a disciplinary procedure. Fact finding is not generally regarded or regarded in the Code, it seems to us, as part of a disciplinary hearing unless later transformed into it."
We respectfully agree. Of course, whether that point of transformation has or has not been reached in any individual meeting that starts out as a preliminary factual inquiry must be a judgment of fact and degree in each individual case for the Tribunal of fact hearing it to make. In relation to what the Applicant's own Originating Application described as "an investigatory interview" on 6 November 2002 with the manager inquiring into a grievance by another member of staff, we have not been persuaded that the Employment Tribunal in this case fell into any error of law in determining that this particular meeting remained on the investigatory side of the line. It seems to us the tribunal directed itself entirely correctly that the material question was whether what started out as a factual inquiry into another employee's grievance had shaded into a disciplinary hearing against the Applicant, quoting in full paragraph 53 of the ACAS Code of Practice which identifies the distinction in the following terms:
"As long as the informal interview … does not result in a formal warning or some other action it would not generally be good practice for the worker to be accompanied as matters at this informal stage are best resolved directly by the worker and manager concerned. Equally employers should not allow investigation into the facts surrounding a disciplinary case to extend into a disciplinary hearing."
[11]In rejecting the argument on behalf of the Applicant that the interview with Mr Johnston fell within the definition because it " might lead to a subsequent [sic] disciplinary hearing " which in the light of the Applicant's record might lead to action of some disciplinary nature against him, the Tribunal said in paragraph 17 of its Extended Reasons:
"We are satisfied that an investigative hearing remains an investigative hearing notwithstanding that in certain circumstances and in particular having regard to an employee's record, proceedings thereafter may be instituted, which would under section 10 be considered to be a disciplinary hearing. Our view is wholly fortified by the guidance contained in paragraph 53 of the ACAS code. It is clear that investigative interviews are seen as separate and distinct from disciplinary hearings "if it becomes clear during the course of the informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal hearing convened at which the worker should be afforded the statutory right to be accompanied."
We are satisfied that Mr Johnston's interview with the Applicant remained at all times an investigative interview whether or not it might have changed its character in the light of any answers given by the Applicant. We therefore dismiss the Applicant's complaint under this claim." In our judgment, that was a factual conclusion the Tribunal was entitled to reach on the evidence before it and we accept Mr Walker's submission for the Respondent that it does not disclose any error of law. That ground of appeal is therefore dismissed.

(C) A 1992

[12]On this second issue the Tribunal reached a clear conclusion of fact that the Respondent through Mr Bunce was in breach of its duty under section 168 to allow the Applicant time off in working hours for his union duties, and there is no cross-appeal against that finding. The Tribunal said in paragraphs 19 and 21 of their Extended Reasons:
"19. By reason of our findings in this matter we are satisfied that Mr Bunce placed a prohibition upon the Applicant undertaking his union duties both in the context of depot visits and subgroup council meetings whilst the grievance process was being investigated. … 21. …. Was Mr Bunce's decision reasonable? … In answering the question as to whether the decision fell within the band of reasonable responses it is in our view implicit that a reasonable employer would have carried out some rudimentary enquiries … No such basic enquiries were made by Mr Bunce. Had he enquired of the instigators of the grievances we are satisfied that they would have concluded that there was no impediment to the Applicant undertaking his union duties. To suggest as Mr Bunce sought to do, that undertaking union activities might "create difficulties" appears wholly implausible having regard to the fact that both complainants and the Applicant were seeing each other on a daily basis at Fratton. …The very fact that during this period [the complainant] was dealing on a daily basis with the Applicant, and had undertaken a stage 3 interview with him, and had conducted a disciplinary hearing where the Applicant represented the person disciplined, fully satisfies us that had Mr Bunce undertaken the most basic of enquiries, to ascertain what if any difficulties would be encountered if the Applicant proceeded with his union duties, he would have come to the clear conclusion that there was no proper impediment that prevented such activity. We unhesitatingly conclude that Mr Bunce and Respondent's prohibition on the Applicant undertaking his union activities did not fall within the band of reasonable responses of a reasonable employer."
[13]The argument is over whether in those circumstances the Tribunal was wrong to limit the remedy it granted to a declaration and misdirected itself in determining that no compensation could or should be awarded for the employer's breach of duty towards the Applicant, for reasons set out in paragraph 22 of the Extended Reasons as follows:
"22. Under section 172 the Tribunal may make an award of compensation. The amount of compensation shall be such as the Tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to permit time off to be taken by the employee, and to any loss sustained by the employee which is attributable to the matters complained of. It was common ground that the Applicant suffered no loss of wages. We have highlighted the Tribunal's enquiry of Mr Segal as to the basis of his claiming any award under this head. We have not found Mr Segal's submissions in this regard at all convincing. We reject any suggestion than an award should be made to reflect in a penal sense the breach committed by the Respondent. In the absence of any specific statutory direction as to the basis upon which an award is made, we consider that we should approach it from principles of compensation only. In the absence of direct financial loss, it seems to the Tribunal that compensation could only be awarded for injury to feelings. We received no evidence from the Applicant in respect of such a claim, or indeed any other basis for awarding compensation. The Applicant when giving his evidence did not signify in the manner in which he gave his evidence that this was an emotionally upsetting or traumatic event. As indicated earlier in this decision we declined to allow the Applicant to be called for the sole purpose of ascertaining as to whether he was claiming that his feelings had been injured. Any such question in the light of the discussion between the Tribunal and counsel, would have meant that any question relating to any other relief claimed by the Applicant would have been seen as wholly leading, and we consider any positive assertion by the Applicant in response would in the mind of the Tribunal have carried very little value. Accordingly we decline to make any award of compensation."
[14]It was confirmed to us that no evidence of any kind of special loss or injury alleged to have been suffered by the Applicant in consequence of the employer's breach of its duty towards him had been given in the course of the hearing, and the discussion referred to in the latter part of that paragraph had taken place only in the final closing submissions of counsel for the Applicant after the evidence of both sides had been closed and after the Respondent's submissions in answer to the claims made against it had been completed.[15]On this part of the case we have been persuaded that the Tribunal misdirected itself and took too narrow a view of the scope of its power to award compensation for what it found to be an unreasonable infringement by the employer of the Applicant's rights under section 168. Section 172, the material parts of which were accurately set out by the Tribunal at the beginning of the passage just quoted, empowers the Tribunal to make an award of compensation in such a case and requires it to have regard not only to "any loss sustained by the employee" but also to the employer's default in failing to permit him to take time off. This formulation also appears elsewhere in the employment legislation in the same or closely similar terms, in provisions for compensation for such matters as refusal to permit time off for public duties, to care for dependants, to carry out duties as an occupational pension scheme trustee, and so forth (cf sections 51, 57B, 60 Employment Rights Act 1996); and is materially different from that of a provision such as section 123 of the Employment Rights Act 1996, where the "compensatory award" is directed to be such amount as the Tribunal considers just and equitable having regard simply to the loss sustained. The difference was accurately pointed up in the recent decision of the EAT in Hardy v Polk (Leeds) Ltd [2004] IRLR 420 where at paragraph 34.3 of the judgment Burton P said, in relation to section 123:
"The statute does not say that the award will be such an amount as the Tribunal considers just and equitable by reference to the conduct of the employer."
The statute before us of course does just that.[16]That section 172 also requires the Tribunal to have regard to any loss the employee can show he has suffered also differentiates it from the provisions for group protective awards under section 189 of the 1992 Act on failure to consult about collective redundancies, where there is no mention of compensation for loss at all (cf Susie Radin Ltd v GMB and others [2004] IRLR 400 , per Peter Gibson LJ at paragraphs 34, 45), but does not mean that under section 172 some financial loss or other special injury is the only thing to which regard is to be had in assessing compensation as the Tribunal in the present case appear to have assumed. The word "compensation" in this context is in our judgment wide enough to include the concept of a cash reparation to the individual for the fact that a wrong has been done to him, independently of any special consequential loss he can prove he has also suffered. Even in the context of unfair dismissal, "compensation" is used in that perfectly normal and natural sense in section 118 of the Employment Rights Act 1996 itself, where the Tribunal's award of "compensation" is expressed to include not only the compensatory award for proved consequential loss under section 123, but also the basic award under sections 119-121 which is a flat-rate or scale award of an amount to compensate the employee for the fact of his unfair dismissal, over and above any separate compensatory amount the Tribunal thinks just and equitable to award under section 123 in respect of his proved consequential loss.[17]In our judgment therefore the Employment Tribunal in this case misdirected itself by apparently concluding that as no specific economic or other loss had been alleged or proved it could not be just and equitable to award anything at all by way of compensation for the unreasonable breach of statutory duty it held to have taken place. We think the wording of section 172(2) and in particular the reference to " any " loss sustained shows the section itself to contemplate that there may be compensation having regard to the employer's default even in the absence of proof of consequent financial or other loss: indeed, as Mr Segal pointed out, in a case like this where the employee is made to work his normal rostered shift instead of attending to his union duties and so gets paid at least as much as if he had done so, the absence of identifiable financial loss is likely to be the rule rather than the exception. In our judgment, Tribunals can properly consider whether it is just and equitable to make some reasonable and proportionate award by way of reparation to the individual union official for the wrong done to him by the employer in preventing or impeding his proper union activities on behalf of his members, without infringing the principle that the purpose must be compensation to the individual, not the imposition of any form of fine or collective punishment on the employer. The amount, if any, of such compensation that is to be considered just and equitable in any individual case is something Parliament has deliberately left to the good sense and judgment of the Employment Tribunal hearing the evidence and taking account of all the circumstances, and we do not think it wise or appropriate to attempt to lay down a priori rules beyond the basic principle we have just sought to outline.[18]For those reasons, we allow the appeal to the extent of setting aside the Tribunal's decision on the question of compensation. As both sides were agreed had to be the case if that were the result, we remit the case to the Employment Tribunal to reconsider what, if any, amount by way of compensation it is just and equitable to award to the Applicant in this case for the employer's breach of its duty to allow him time off for his trade union duties under section 168. We direct that the reconsideration of the case is to be confined to this issue and should be carried out by the same Tribunal as dealt with the case in the decision under appeal unless some special circumstances make it impracticable for the same members to be reconvened for a further hearing within a reasonable time, in which event it will be for the regional Chairman to give appropriate directions for the hearing and disposal of the case. Subsidiary issue on further evidence[19]That makes it unnecessary for us to determine the further subsidiary ground of appeal on the Chairman's refusal to allow the Applicant's case to be reopened by recalling him to give evidence of any alleged injury to his feelings for which he wished to claim special compensation. Mr Segal made clear he only sought to pursue this if his main argument on compensation were not to succeed, as it has; and we say only that it would have been an exceptional course for a Tribunal to allow a case to be reopened to include a fresh factual allegation at such a late stage, and equally exceptional for the Appeal Tribunal to contemplate interfering with the exercise of a Chairman's procedural discretion on such a matter.[20]For the reasons given above, the appeal on compensation under section 172 succeeds to the extent we have indicated and the case is remitted for rehearing of that issue only.