Azam v Ofqual (Trade Union Rights: Dismissal) [2015] UKEAT 0407_14_1903

EAT
Azam v Ofqual (Trade Union Rights: Dismissal)
[2015] UKEAT 0407_14_1903 · 2015-03-19
[7]“ 8. Reference was made to the decision of the Employment Appeal Tribunal (Phillips J presiding) in Lyon v St James Press Ltd [1976] IRLR 215. Miss Slade rightly says that the case was decided under earlier legislation in which there was no equivalent of s.58(2)(b). ‘Appropriate time’ was not defined in the Employment Protection Act 1975.[9]Phillips J stated at paragraph16:
“The special protection afforded by para. 6(4)” of the 1975 Act “… to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of the trade union must not be obstructed by too easily finding acts done for the purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate.”
Phillips J added at paragraph 20 in relation to acts claimed to come within the protection: “We do not say that every such act is protected. For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair.” ” 28. Merely going “over the top” will not, however, suffice. The approach to the facts in the case of Burgess is instructive; see, further, the Judgment of Pill LJ at paragraphs 12 to 14:[11]“12. In the findings of the industrial tribunal as to what the respondent said, I find nothing beyond the rhetoric and hyperbole which might be expected at a recruiting meeting for a trade union or, for that matter, some other organisation or cause. Neither dishonesty nor bad faith are suggested. While harmonious relations between a company and a union are highly desirable, a union recruiting meeting cannot realistically be limited to that object. A consent which at the same time prevents the recruiter from saying anything adverse about the employer is no real consent. Given that there was consent to use the meeting as a forum for recruitment, it cannot be regarded as an ‘abuse of privilege’ to make remarks to employees which are critical of the company. An industrial tribunal may be surprised at the situation which developed, but it was the employers who, at the start of their induction course, put the respondent in the position of being both trainer manager and recruiter. Having put him in that position, they cannot reasonably expect his activities in the latter role to be limited by the fact that he also was performing the role of trainer manager.[13]It appears to me that the industrial tribunal did base their decision on an implied term of the kind now contended for, albeit not in the same way. The company’s case is not, in my judgment, improved by the present reliance upon an implied term that the recruiter should say nothing to criticise or disparage the company or upon the presence of the word ‘consent’ and the word ‘permissible’ in s.58(2)(b). One has only to consider the likely reaction if the company had attempted to make the term expressed. It is difficult to envisage any trade union official accepting a limitation upon his activities at a recruiting meeting that he should say nothing critical about his employer. Indeed, it is difficult to envisage a sensible employer attempting to require such a term. It is wholly unrealistic, in my judgment, to believe that such a term can be implied in the present context. The respondent’s admission that he had ‘gone over the top’ does not, in my judgment, provide a basis for a finding that during his speech he was not taking part in trade union activities. That is an expression sometimes used colloquially in [situations] when that moderation and balance normally shown in social intercourse is perceived to have been exceeded. In the circumstances of the present case, however, it was not an admission that could form the basis for a conclusion that in law the contents of the speech were outside the scope of trade union activities. The Employment Appeal Tribunal correctly concluded that the industrial tribunal had fallen into error. 14. I would base the decision on this appeal upon the grounds already expressed rather than upon the Employment Appeal Tribunal’s reliance on a verbal inconsistency between the industrial tribunal’s finding that the respondent was ‘taking part in the activities of an independent trade union at an appropriate time’ and their subsequent finding that he was not dismissed for trade union reasons. I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term ‘trade union activities’ in s.58 of the Act.” 29. If there were any potential conflict between the approach adopted in the Lyon v St James case and the case of Burgess , then the approach laid down in Burgess is to be preferred; see per Slade J in Mihaj v Sodexho Ltd [2014] UKEAT/0139/14:[17]“ 17. The Judgment of the Court of Appeal in Bass Taverns v Burgess [1995] IRLR 596 makes it clear that the way in which trade union activities are carried out is immaterial to the decision as to whether they are in fact trade union activities unless the way in which they are carried out is such as to be dishonest, in bad faith, or carried out for some other organisation or cause so as to remove them from the scope of what can properly be called trade union activities. …[20]However, the approach in Bass Taverns , in the Court of Appeal rather than that in Lyon v St James Press , is to be followed if and insofar as there is any relevant inconsistency between the two. In our judgement, the Employment Judge failed to apply the approach set out in Bass Taverns in that he determined that an Employment Tribunal at a full Liability Hearing was not likely to hold that the dismissal of the Claimant fell within the statutory protection because of the way in which trade union activities were carried out. The issue for the Employment Judge to decide was whether an Employment Tribunal, on a full Liability Hearing, was likely to find that the Claimant was dismissed for carrying out trade union activities. The way in which those activities was carried out was not relevant unless it was such as described in Bass or Lyon , namely acting in bad faith, dishonestly or for some extraneous cause or in any other way such as to take those actions outside the proper scope of trade union activities.” 30. In establishing which side of the line an activity falls, it may be instructive to have regard to the ACAS Code of Practice No 3 - Time Off for Trade Union Duties and Activities 2010 . In particular, (relevant to the present case), paragraph 47 provides as follows:
“When using facilities provided by the employer for the purposes of communication with their members or their trade union, union representatives must comply with agreed procedures … in respect of access to and use of company information. The agreed procedures will be either those agreed between the union and the employer as part of an agreement on time off … or … general rules applied to all employees in the organisation. In particular, union representatives must respect and maintain the confidentiality of information they are given access to where, the disclosure would seriously harm the functioning of, or would be prejudicial to, the employer’s business interests. … Union representatives should understand that unauthorised publication risks damaging the employer’s business, straining relations with the representative body concerned …”
Discussion and Conclusions 31. It is convenient to first address the second ground of appeal, the question whether the ET erred in failing itself to consider whether the information was truly confidential. That was a point that was effectively all but abandoned before me and rightly so. It was not a point taken below, and the ET cannot be criticised for proceeding on the basis that it was accepted that the information given to the Claimant in confidence and (a strict assertion of that confidence continuing) retained that characteristic at the relevant time. 32. This is a point that has to underpin my approach to this appeal more generally: the reasons given for any Judgment have to be read in the light of the case that was before the court or tribunal concerned. It is not an error of law to determine the case as it is presented rather than some other; it will not amount to inadequate reasoning if the court or tribunal does not address in detail points that were not really in issue before it. 33. Mr Johnson fairly concedes that the emphasis of the Claimant’s case below had been on ulterior motive; the argument had been that the dismissal was really aimed at enabling the Respondent to rid itself of the Claimant because of her other trade union activities, most specifically her general complaint about the Respondent made to Ms Galliers. It was suggested that these matters had effectively made her a thorn in the Respondent’s flesh, and the way in which the ET understood the Claimant’s case below was that the activity of distributing the spreadsheet was used by the Respondent to dress up the dismissal as being one relating to her misconduct when the reason really related to other activities on her part. The ET rejected that case on the facts (see, for example, its findings set out at paragraphs 37 to 38, 42 and 43). It did not err in dealing with that (ulterior motive) case; that had been part of the Claimant’s case as presented before it. Accepting that, Mr Johnson says, however, that the ET’s error was in allowing itself to be distracted by that case and in failing to properly address the question whether the dismissal of the Claimant for her conduct in distributing the spreadsheet to her members was itself a dismissal for trade union activities. 34. Although that case may not have been at the forefront of how the Claimant’s case was presented below, I can see that it was part of her case and on that basis I agree with Mr Johnson that the ET would have been in error if it had failed to consider the case before it in this regard. Where I disagree with him, however, is in my conclusion that the ET clearly did. Indeed, it specifically considered whether the Claimant’s dismissal for distributing the spreadsheet was automatically unfair because it amounted to an activity of an independent trade union. 35. In assessing the ET’s reasoning in this regard, it is again important to note what was and what was not in issue before it. It was not in dispute that the Claimant had been given the spreadsheet in her capacity as a trade union representative; she would not have been given the spreadsheet in the normal course of her employment. The ET was thus not obliged to detail its reasoning on that point. It was also not an issue that distributing that information to members per se (even this spreadsheet, if it had not been confidential and only disclosed to her on the basis that she would not distribute it) could be a trade union activity. 36. Adopting Mr Johnson’s analysis, it can be seen that, accepting that which was not in issue, the ET addressed the relevant questions. First, it plainly did ask what activity led to the dismissal. It found (paragraph 50) it was the Claimant’s gross misconduct in disclosing, in breach of contract, confidential information (the spreadsheet) and disregarding a direct instruction from a manager (i.e. that she should not disclose and distribute that information). 37. Mr Johnson’s second and third questions would require that the ET should have asked whether that was a trade union activity - an act carried out as part of the activities of an independent trade union, and, if so, whether it was carried out at an appropriate time. 38. Although I understand that Ms Cunningham had sought to question whether the activity had been carried out at an appropriate time, the ET does not seem to have found that was a relevant question in this case: there is no suggestion that - had the Claimant been found to have been performing a trade union activity - the ET would have found she had done so at an inappropriate time. As for the question whether the Claimant was performing a trade union activity, the answer to that was dependent on what Mr Johnson sees as the fourth question: whether the activity was carried out in such a way as to be dishonest, in bad faith, or for some extraneous cause or in some other way such as to remove it from the scope of what could properly be called trade union activities (see per Slade J in Mihaj v Sodexho Ltd , cited above). 39. For my part I do not see that Mr Johnson’s questions 2 and 4 are necessarily separate: whether an activity is properly to be regarded as an activity of an independent trade union (question 2) may itself depend on the answer to what he has identified as the fourth question. And that, in turn, will invariably be one of fact and degree for the ET. The question does not relate to the manner in which such an activity is carried out - certainly whether it is done in the way the employer would like is not the test - unless it was such as to take it “outside the proper scope of trade union activities”. 40. In assessing whether the activity is properly to be regarded as one of an independent trade union or whether it falls outside the scope of such activities, I again part company with Mr Johnson; I consider the ET may be assisted by the ACAS Code . Relevantly here, that recognises that constraints might be placed on trade union activities in terms of the disclosure of information received from the employer where that information is confidential. More specifically, however, in this case the ET expressly found as a fact that the Claimant had misled her branch executive committee (paragraph 41) and concluded that vitiated the endorsement of her activity in distributing the spreadsheet to members (paragraph 51). The ET found the Claimant’s actions in this regard to have been deliberate (paragraphs 40 and 41) and, on the basis of its findings of fact, concluded that the activity for which she had been dismissed thus fell outside the pursuit of any lawful trade union activity (paragraph 51). So, to the extent that the Claimant’s case included the assertion that the conduct for which she had been dismissed (the distribution of the spreadsheet disclosed to her on a confidential basis and expressly not for distribution to her members) amounted to a trade union activity, the ET expressly dealt with the point, reaching a permissible conclusion in that regard with which this court cannot interfere. 41. For all those reasons I dismiss this appeal.