British Gypsum Ltd v Thompson (Unfair Dismissal : Automatically unfair reasons) [2011] UKEAT 0115_11_2211

EAT
British Gypsum Ltd v Thompson (Unfair Dismissal : Automatically unfair reasons)
[2011] UKEAT 0115_11_2211 · 2011-11-22
Unfair dismissal – Fair in all the circumstances pursuant to s.98(4) of the Employment Rights Act 1996.Delay – Tribunal delay in delivering judgment.Employee is a shop steward – redundancy selection – during consultation process employee expresses opposition to need for change and implementation of new systems – employee selected for redundancy – internal appeal. Tribunal holds employee automatically unfairly dismissed by reason of undertaking trade union activities at an appropriate time as a shop steward.HELD, allowing the appeal in part,1. the employee was taking part in the activities of an independent trade union at an appropriate time;2. the delay of the tribunal in promulgating its decision does not give rise to an independent ground of appeal;3. however the tribunal failed to make findings on the issue as to the effect of the appeal, and this issue is to be remitted to a differently constituted tribunal for re-hearing on this one issue;4. the cross-appeal will be stayed pending determination of the hearing before the tribunal.

THE HONOURABLE MR JUSTICE SUPPERSTONE

Introduction

1. On 27 July 2010 an employment tribunal sitting at Leicester, chaired by Employment Judge Britton, found that the Respondent was automatically unfairly dismissed by reason of his undertaking trade union activities at an appropriate time as a shop steward. The Appellant appeals that decision. The Respondent cross-appeals from the decision, in the event that the appeal succeeds, on the ground that the tribunal failed to consider whether his dismissal was fair in all the circumstances pursuant to section 98(4) of the Employment Rights Act 1996.2. Mr Mark Trafford of counsel, who also appeared below, appears for the Appellant. The Respondent is represented by Miss Angharad Davies of counsel, who did not appear below.

The facts and tribunal’s findings on liability

3. The Appellant is an internationally known manufacturer of building materials. It is part of Saint-Gobain which is a French plc. The GMB is a recognised Trade Union at the Appellant’s East Leake plant. The Respondent was a GMB shop steward at the plant.4. By July 2008 it became clear because of the recession that there would need to be redundancies in the East Leake workforce. A consultation process started with the trade unions around 10 September 2008 shortly after the formal redundancy announcement was made. 23 redundancies were required across the entire plant: after volunteers this seems to have been reduced to a need for about nine. The warehouse had approximately 53 employees; the requirement therein was for six redundancies.5. From the consultations resulted agreed guidance for applying the selection criteria. Complex selection matrices were created. It suffices to record that there are certain items such as technical skills, which could be assessed objectively by looking at what was recorded in terms of the skills of any given employee. There are other criteria and sub-criteria where the assessment becomes more subjective. An example is communication and the sub-heading – inter-team (positive interaction) or contribution to team brief (positive) . There is another criterion headed working styles and then sub-criteria such as communicates well with management or avoids conflict or avoids confrontation . The focus was on current skills, whether they be objectively or subjectively assessed, and in terms of meeting the future needs of the business. In this connection there was an IT system known as SAP which was being used across some elements of the business. As part of the reorganisation SAP would need to be fully integrated into the warehouse. This had been under discussion since September 2007. So the retained employees would need to be committed to its introduction. The same applied to the implementation of another system known as WCM.6. On 13 March 2008 Mr Colin Worthington (CW), the GMB Senior Shop Steward, raised a grievance under the formal procedure between the trade union and the Appellant. It related to the workforce in the warehouse and requested that as a ‘quid pro quo’ for implementing SAP they should go up a pay grade. There was a series of meetings between management and the shop stewards including the Respondent. Albeit the trade union did not get what it wanted, this specific grievance was resolved between the Appellant and the union.7. Mr Worthington was not penalised in the redundancy selection process for raising the grievance. Only the Claimant was made compulsorily redundant. All the other shop stewards kept their jobs apart from the volunteer Mr Eddyshaw. There is no evidence of prejudice against the union or its shop stewards per se in the redundancy selection process. However the Claimant scored very badly on the subjective criteria. The issue was, why did he do so?8. Whether or not the Claimant was dismissed for the prescribed reason namely because of the way in which he conducted his trade union activities led the tribunal to consider what he did or did not say at team briefings, including, in particular, the pronouncement of the redundancies at the presentation on 17 September by Samantha Bucknall (SB) who was employed by the Appellant as a Logistics Manager with overall charge of the warehouse. She together with Lee Chaplin (LC), were the crucial witnesses for the Appellant in determining whether the Respondent was marked down because of his trade union activities. LC was the understudy to Mr Paul Le Bon (LeB) with a view to becoming his successor as Warehouse Manager. LeB was employed by the Appellant on a one year contract between 1 October 2007 and 30 September 2008 as the Warehouse Manager. He went on garden leave for the last two weeks of his contract on 12 September 2008. LeB’s evidence relates to his “sense checking” the six employees including the Respondent who scored lowest in the warehouse by LC and SB, and his confirmation of those scores.9. Other material findings of fact made by the tribunal include the following:i) In this case so much is about style. The Respondent is robust and forthright albeit the tribunal found him to be sincere (para 10.13).ii) Despite what the Respondent may contend, he did appear resistant to change (para 10.15).iii) SB clearly objected to the Respondent’s style, which she saw as being aggressive and perhaps discourteous. In turn it may well be that he resented her approach (para 10.18).iv) SB’s credibility was adversely affected by her record of what the Respondent did at a meeting in October 2007 (paras 10.17-10.19).v) The Respondent was the only shop steward with whom the Appellant had difficulties (para 10.27).vi) SB is a driven individual in terms of wanting to achieve the targets that she sets in the workplace and inter alia her commitment to the need for change, for example the implementation of WCM and SAP. She had in the Respondent someone she perceived to be obstructive (para 10.28).vii) LeB did warn the Respondent that if he did not desist in his approach as a shop steward the outcome could be his dismissal (para 10.28).10. The critical findings of fact made by the tribunal are contained in paragraphs 10.29-10.32 of the tribunal’s reasons (“the Reasons”). We set them out in full.
“10.29 That brings us to the key issue. From the evidence before us and particularly that of the Claimant, we have no doubt that first at team briefings held by LeB, and then at the one held by LC the Claimant inter alia voiced his scepticism and indeed opposition to inter alia implementing WCM in the warehouse or reintroducing SAP. Making comments such as SAP had been tried before. It had not worked. It was a waste of time. Not in my contract. As to SB, team briefs were very infrequent prior to the 17 th September 2008. So it is more probable that his opinion was voiced more privately: other than it was of course made clear in the grievance meetings earlier in the year when the GMB was unsuccessfully lobbying for a pay increase for the warehouse in return for implementing SAP.
10.30 Then there is the all important team briefing on 17 September 2008 given by SB, and at which LC was present. That brings us to LCs credibility. His statement signed by him clearly stated at paragraph 8 that in the sense checking with LeB the scores of all employees had been sense checked. Yes he corrected it when giving evidence, but by then this part of the Respondent’s case had been exposed as being false. And of course that paragraph in the context of lack of transparency can been seen in terms of the Respondent generally, certainly before the Hearing, seeking to mask that LeB had been presented with only 6 names and scores out of 73, was by now on garden leave, and which invited approval. Then in this statement at paragraphs 13 and 14 there is no mention of the Claimant having sworn at this presentation or any other team brief. Yet by the time of cross examination it is:
‘ we don’t get paid for fucking WCM… its not in our contract ’
. It follows that we treat his evidence with a degree of scepticism.10.31 But given the admissions of the Claimant, it is obvious that at that meeting he did repeat his scepticism and opposition. Were his opinions personal and thus not voiced in the context of his role as a shop steward. First there is SBs paragraph 11 of her witness statement. Having said:
‘ Paul, Lee and I had all experienced various incidents where the Claimant made comments that were negative towards the department and disruptive of the team ’, then, and it can only be sequentially the briefing on the 17 th September 2007, she states: Having said this ‘ Huh were (sic) not paid to do (expletive) WCM. In the same meeting when I was explaining the changes to the structure and how we would be operating a department going forward (without warehouse section leaders) the Claimant again stated “we’ll see about that” ’
. Well of course there is the use of the plural. And at this presentation to announce the reorganisation and the redundancies to the shift the only shop steward present is the Claimant as it is his shift. CW is on the opposing shift. And as to this use of ‘we’ as opposed to ‘I’, SB repeated in her sworn evidence that he said:
‘ We don’t get paid to do f’ing WCM ’
. And as to the structural changes:
‘ So you are basically getting rid of workers to put in another level of management ’
. That the Claimant might be wrong on that observation is not the point. On the face of it he is expressing, albeit it might be unhelpful, the type of opinion which can be associated with a shop steward articulating what he believes to be the view of his members. And in his evidence LC also referred to the words ‘ we don’t get paid to for f’ing WCM ’. He did not agree that the Claimant was articulating the views of the majority but then added ‘ a few might agree with him ’. LeB says that the Claimant was always expressing a personal opinion, but that does not fit with this evidence from his colleagues.10.32 As to the Claimant:
‘ As to the distinction with the personal (in expressing opinions) I don’t think at work I ever took my union hat off from the moment I arrived at work I was a shop steward ’
. The Claimant denies his body language at this presentation was unhelpful, facing the members, hunched arms folded and voicing the opinions to which we have now referred. But what if he was? In the Tribunal’s experience as an industrial jury, and particularly the members, many shop stewards and particularly in this type of industrialised and traditionally unionised setting, do not differentiate between the personal and the shop steward role once they are at work. And part of the job is to articulate the views of the members. CW has a different style. He asked politely couched questions designed to deal with concerns or queries which his members might have. In contrast the Claimant’s style is more robust opinionated and abrasive. But was he voicing these opinions on a solely personal level or also as the Shop Steward. From the preferred evidence now elucidated, it clearly was in the duality of roles. Finally was it an appropriate time. The Shop Stewards had not been told they could not speak at team briefs or at this presentation. Even if the interventions were unhelpful, even counter productive, they were therefore at an appropriate time. Therefore it is analogous to the Bass Taverns Ltd v Burgess scenario.”11. The Respondent appealed the decision that he would be dismissed by reason of redundancy. The appeal hearing was before Mr Darren Wilson (DW), the Plant Manager, on 7 November 2008. He rejected the appeal.

The legal framework

12. Section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) states:
“ Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown—
(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and(b) that the reason (or, if more than one, the principal reason) why he was selected for dismissal was one of those specified in section 152(1),the dismissal shall be regarded as unfair for the purposes of [Part X of the Employment Rights Act 1996](unfair dismissal). ”13. Section 152 of TULRCA states as follows:
“ (1) For purposes of [Part X of the Employment Rights Act 1996](unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

…

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time…

(2) In sub-section (1) ‘an appropriate time’ means—

…

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union [or (as the case may be) make use of trade union services]. ”

The appeal

14. The Appellant appeals against the decision of the tribunal on the eight grounds set out at paragraphs 17-24 of paragraph 6 of the Notice of Appeal. In summary, as appears from Mr Trafford’s skeleton argument, they raise three issues. First, was the reason, or principal reason for dismissal, stated to be for redundancy, in fact for union-related activity? Second, did the tribunal fail to address the appeal and, if so, does this amount to a fundamental flaw in the tribunal decision? Third, what is the effect of the delay of almost eight months from the conclusion of the evidence to the decision by the tribunal? We shall deal with each in turn.

Issue 1: reason for dismissal

15. Mr Trafford did not challenge the findings of fact made by the tribunal. He said that the appeal was based on the key meeting on 17 September 2008. He submitted that the Respondent was not acting as a shop steward at that meeting because SAP and WCM had been accepted by the union in principle in March 2008 and thereafter the Appellant and the union focused on the implementation of those systems. That being so the Respondent’s opposition to WCM in principle at the meeting on 17 September 2008 could not have been as an official of the union. He was acting on a frolic of his own. Accordingly he was not taking part in the activities of an independent trade union at an appropriate time.16. We reject this submission. First, there is no evidence that the union had agreed to the introduction of the WCM system. By contrast the union had accepted the introduction of SAP. Second, and more importantly, it is clear from the findings of fact made by the tribunal, to which there is no challenge, that the purpose of the meeting on 17 September 2008 was for SB, on behalf of the Appellant, to announce the reorganisation and the redundancies to the shift (see para 10.31 of the Decision set out at para 10 above). Paragraph 2 of the Appellant’s grounds of resistance to the claim states that seven days earlier on 10 September 2008 the Appellant announced “that due to the impact the global credit situation was having on [the Appellant’s] level of sales, [the Appellant] was proposing to run production capacity in line with product demand, which would result in a reduction in head count”. At the meeting on 17 September the Appellant presented their position to part of the workforce. The implementation of WCM was to form part of the reorganisation (para 11.4 of the Reasons). The Respondent was the only shop steward present at the meeting. At paragraph 10.12 of the Reasons the tribunal stated:
“… We had before us by the end of this Hearing the presentation which SB gave to all members of the warehouse workforce at their various shifts and in terms of this reorganisation on 17 September 2008. And it followed a similar presentation that DW had given to the shop stewards as part of the consultation process. But there was nothing stated to the shop stewards by DW that they should remain silent at the workforce presentations, albeit there was no slot in the presentation to provide for the shop stewards to address the shift. And of course it is part of a shop steward’s function to articulate the concerns of members even if that might be unpalatable to the employer and undermining of the presentation.”
Again at paragraph 10.32 of the Reasons, as we have noted, the tribunal stated:
“… The shop stewards had not been told that they could not speak at team briefs or at this presentation. Even if the interventions were unhelpful, even counter-productive, they were therefore at an appropriate time. …”
17. In our judgment the Respondent was plainly taking part in the activities of an independent trade union at an appropriate time at the meeting on 17 September 2008, and the tribunal was entitled to so find on the evidence. We conclude this ground of appeal fails.

Issue 2: the appeal hearing

18. The submission made on behalf of the Appellant before the tribunal was that if there was any flaw in the initial process it was cured by the appeal (see paragraphs 123-134 of the Appellant’s Outline Submissions). Mr Trafford submits that the Tribunal failed to address the issue as to the effect of an appeal on the process in its decision (see paragraph 21 of Grounds of Appeal).19. There is only one clear reference to the appeal in the decision of the tribunal. That is in paragraph 10.2 where the tribunal refers to the witnesses for the Respondent and at paragraph 10.2.5 refers to DW. It is recorded that “he rejected the [Respondent’s] appeal”. However there are no findings of fact made in relation to the appeal. Under the heading “Conclusion” the tribunal state:
“Issues as to whether or not [the Respondent] might have been retained had the whole exercise been re-scored become so speculative that the tribunal cannot conclude that the [Respondent] would still have been dismissed”
. Miss Davies submits that this shows that the appeal was not curative of the defects. The Respondent was not informed that LeB had only “ sense checked ” the bottom six employee’s scores until after the appeal hearing. The failure to communicate this fact to the Respondent prior to the appeal meant, she submits, that it was not possible for the appeal to be curative. Mr Trafford submits that the appeal did remedy any defects inherent in the redundancy process. He submits that the issue the tribunal were addressing in the sentence under the heading “Conclusion” we have quoted was what the position would be if the exercise had been conducted fairly in the event of an unfair dismissal finding.20. It is agreed between the parties that submissions were made to the tribunal on the issue as to the effect of the appeal, yet the tribunal has made no findings in relation to those submissions. Miss Davies accepts that if the appeal hearing was truly a de novo hearing then it could cure the defects inherent in the redundancy process. It was the Respondent’s case that there was no such de novo appeal hearing and the appeal was not curative of the defects.21. However in the absence of any findings made by the tribunal on this issue, this ground of appeal must succeed.

Issue 3: delay

22. Paragraph 24 of the Grounds of Appeal states:
“The judgment was delivered more than seven months after the final day of evidence. It is submitted that, in the context of this case, such a length of time demonstrates that the ET must have forgotten to consider pertinent evidence and law (the appeal point being the most obvious; although there are others).”
23. We consider it regrettable that the Tribunal took so long to deliver its judgment, and it then failed to deal with the appeal issue. However it is only in exceptional cases that unreasonable delay in promulgating the decision of an employment tribunal in itself constitutes an independent ground of appeal ( Connex South Eastern Ltd v Bangs [2005] 1 CR 763, CA). Such a case could occur where due to excessive delay there is a real risk that a litigant has been deprived of the substance of his right to a fair trial under Article 6(1) of the European Convention on Human Rights.24. Mr Trafford suggests that by reason of the delay the Tribunal overlooked the timing of what he describes as the “SAP/WCM agreement” (see para 43 of his skeleton argument) which was, he says, fundamental to the argument as to whether the Respondent’s views were those of the union and, therefore union-related activities. However we have concluded there was no evidence that the GMB agreed the introduction of WCM. Mr Trafford did not suggest there were any other matters overlooked by reason of the delay that impacted on the decision that the Respondent was automatically unfairly dismissed, apart from the appeal. We also note that the delay in part was because, as we understand it, at the conclusion of the evidence the parties agreed to put their final submissions in writing which they did by about 13 December 2009. In response to questions raised by the tribunal the parties then made further written submissions on 6 January 2010. At the tribunal’s request there was a hearing by telephone on the following day. In our view this was not a satisfactory way of dealing with submissions at the conclusion of a lengthy hearing which had taken five months to complete. Moreover after the telephone conference on 7 January 2010 there was a further period of more than six months before judgment was delivered. However in our judgment the delay in this case does not give rise to an independent ground of appeal.

Conclusion

25. For the reasons we have given this appeal is dismissed save for the ground of appeal relating to the failure by the tribunal to address the appeal hearing which is allowed. We have decided that in all the circumstances the case should be remitted to a differently constituted tribunal for re-hearing on this one issue. The cross-appeal will be stayed pending determination of the hearing before the tribunal.