B e f o r e :
LORD JUSTICE BALCOMBE
LORD JUSTICE PILL
SIR RALPH GIBSON
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BURGESS |
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APPELLANT |
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BASS TAVERNS LIMITED |
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RESPONDENT |
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(Computer Aided Transcript of the Palantype Notes of
John Larking Verbatim Reporters, Chancery House, Chancery Lane
London WC2 Tel: 071 404 7464
Official Shorthand Writers to the Court)
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MISS E SLADE QC and MR JOHN STOBART (Instructed by Messrs Andersons of Nottingham) appeared on behalf of the Appellant.
MR J BURKE QC and MR N RANDALL (Instructed by Messrs Rowley Ashworth of Wimbledon) appeared on behalf of the Respondent.
J U D G M E N T
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HTML VERSION OF JUDGMENT
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LORD JUSTICE PILL: This is an appeal against a decision of the Employment Appeal Tribunal, His Honour Judge Levy QC presiding, whereby on 2nd February 1994 they allowed an appeal from a decision of an Industrial Tribunal sitting at Birmingham on 18th March 1993. The Industrial Tribunal had decided that Mr K W Burgess, the Respondent, had been unfairly dismissed by his employers Bass Taverns Limited ("the company"). That finding of the Industrial Tribunal was not in issue before the Employment Appeal Tribunal. The Employment Appeal Tribunal, however, allowed an appeal by the Respondent from the Industrial Tribunal's finding that he had not been dismissed for taking part in trade union activities under Section 58 of the Employment (Protection and Consolidation) Act 1978 ("the 1978 Act"). That section, now re-enacted in the Trade Unions and Labour Relations (Consolidation) Act 1992, was still in force at the time of the dismissal in June 1992. By reason of that finding, the Respondent was entitled to a special award in a substantial sum in addition to the agreed basic and compensatory award for unfair dismissal.
The dismissal was a constructive dismissal. The Respondent was demoted from his position of trainer manager and he left the company's employment. He was demoted because of what he said at an induction course for the company's trainee managers. The Respondent was himself a manager of licensed premises owned by the company. As a trainer manager he also gave presentations at a six-week induction course for trainee managers and practical training at the premises he managed. The Industrial Tribunal found that the Respondent was considered to be an excellent employee, a loyal manager, well respected and liked and to be on good terms with his employers. The Industrial Tribunal found the facts insofar as material as follows:
"(c) The applicant,"
that is the present Respondent,
"was a lay official (shop steward) of the NALHM, the National Association of Licensed House Managers and there was prior to this incident no problem between the union and the respondents. In fact, the respondents on the first day of their induction course always allowed the union to make a presentation to the trainees of the union's role in the respondents' business and for the union to use that meeting as a forum for recruitment. The applicant was part of the Management team but in this year conducted the presentation on behalf of the union. We find that the Applicant was when making that presentation `taking part in the activities of an independent trade union at an appropriate time', but within the context of the Induction Course.
"(d) There were four trainer managers at the presentation that day which included presentations other than that of the applicant on matters appertaining to the respondents' business. The retail personnel officer, Mr M Hodgson, was also present and following the applicant's presentation took considerable exception to the way within that presentation the applicant had seen fit to disparage the role of the company in matters relating to injuries suffered by managers, with the words `You will get threatened and if you get hurt it will be the union who will fight for you, not the company. At the end of the day the company is concerned with profits and this comes before everything else.' He also made other disparaging remarks about the company and showed pictures of battered licensees. These matters were reported to higher management by Mr Hodgson who were, to say the least, most concerned.
"(e) Mr Holden-White, retail director, saw the applicant shortly thereafter and discussed the presentation. During that conversation on 3 March, which it is conceded was not within the disciplinary procedure, they discussed the report made by Mr Hodgson and the applicant admitted that he had gone over the top."
On those facts the tribunal reached the following conclusions:
"The employers when withdrawing status and a trainer manager's additional salary did so because they felt that his actions were not compatible with his position of trainer manager at the start of a six week Induction Course. They had found, and he admitted, that he had `gone over the top'. This is a special case on special facts. The reason was made clear to the applicant. He had in management's eyes abused the privilege given to him to recruit managers for the union and to continue to foster harmonious relationships between the two. That was `the reason' for the conduct of the employer which entitled the applicant to resign. The respondents rely on that reason. They have not shied away from it. Neither member of the tribunal sees this as a dismissal for trade union inadmissible reasons, nor does the chairman. We all accept the time, place and authority for the presentation but the events and the reaction of the employer and the subsequent conduct of the employer do not make this an `artificial' dismissal for trade union reasons."
I am not sure that I follow what the Industrial Tribunal intended by using the word "artificial". It is common ground that the word adds nothing to their reasoning. What is clear is that the tribunal found that the dismissal was not for a reason within Section 58 (1) (b) of the 1978 Act - dismissal relating to trade union membership - but for a reason within Section 57 (2) (b), that is, related to the conduct of the employee. Provided that the Industrial Tribunal's finding was a permissible option under the Act the Employment Appeal Tribunal should not reverse it because that tribunal takes a different view of the facts. (See Piggott Brothers v Jackson [1992] ICR 85 92 E.) Section 58 of the 1978 Act (now Section 152 of the 1992 Act) provides insofar as is material:
"(1) ..... the dismissal of an employee,"
by an employer for the purposes of this part,
"as having been 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 subsection (1) (b) `an appropriate time'",
in relation to an employee taking part in activities of a trade union,
"means -
(a) a time outside his working hours, or
(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;"
Miss Slade QC for the company bases her submission upon the wording of Section 58 (2) (b) and a limitation upon the consent given. It was permissible for the Industrial Tribunal to conclude that the permission to recruit granted to the Respondent had been exceeded. As the tribunal of fact they were entitled to conclude that the contents of the Respondent's speech were, in the circumstances, outside the permitted scope of the meeting and that the consent had been exceeded. The circumstances relied upon were the context of the meeting, the first day of an induction course for trainee managers. Reliance is also placed upon the Respondent's admission that he had "gone over the top." It is not suggested that the contents of the speech were dishonest or actuated by malice or that if delivered on a different trade union occasion would have been other than taking part in the activities of an independent trade union. No malice or ill feeling was involved, the Industrial Tribunal found.
The consent was subject, it is submitted, to an implied limitation that the occasion would not be used to criticise the company or to undermine the company in the eyes of the trainees. The Industrial Tribunal were entitled to conclude that the contents of the speech, as the tribunal found them to be, were outside the scope of the consent and therefore outside the scope of Section 58 (1). Miss Slade concedes that a finding in the company's favour depends upon the presence of an implied limitation upon the ambit of the consent given to the Respondent. There was no evidence of any express limitation. While they were not referred to Section 58 (2), the Industrial Tribunal were entitled to and did find such a limitation. Miss Slade submits that, even if by reason of applying the wrong test or lack of reasoning, the decision of the Industrial Tribunal cannot stand, the Employment Appeal Tribunal should not have substituted its own conclusion for that of the Industrial Tribunal, but should have remitted the case for re-hearing.
Reference was made to the decision of the Employment Appeal Tribunal (Phillips J presiding) in Lyon v St James Press Limited
[1976] ICR 413. Miss Slade rightly says that the case was decided under earlier legislation in which there was no equivalent of Section 58 (2) (b). "Appropriate time" was not defined in the Employment Protection Act 1975.
Phillips J stated at page 418 C:
"The special protection afforded by paragraph 6 (4)"
of the 1975 Act 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."
The argument in relation to a limitation upon the consent is now augmented by reference to Section 58 (2) (b). No reference to that paragraph appears in the employer's written response to the original claim or in the evidence or submissions before the Industrial Tribunal. The company's case has hitherto been put simply on the basis that the conduct of the Respondent in addressing the trainee managers as he did should not be regarded as taking part in the activities of a trade union. The company were not legally represented before the Industrial Tribunal. Having regard to their findings of fact, it was not, in my judgment, a permissible option for the Industrial Tribunal to find that the dismissal was other than for taking part in trade union activities. The Respondent was permitted to use the meeting as a "forum for recruitment". I will consider the alleged limitation on the consent later.
On the face of it, a consent to recruit must include a consent to underline the services which the union can provide. That may reasonably involve a submission to prospective members that in some respects the union will provide a service which the company does not. On the assumption that I am prepared to make that the life of a manager of licensed premises has its dangers and licensees are from time to time injured by members of the public, a union existing to protect the interests of licensees is entitled to claim that if such a situation arises it is the union and not the company which will fight the licensee's cause. Indeed, to bring a claim on behalf of members arising out of personal injuries is an important function of many trade unions and the service can properly be emphasised at a recruiting meeting.
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.
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 Section 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. 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 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 Section 58 of the Act.
Miss Slade submits that, if the Industrial Tribunal decision cannot stand, the appropriate course was and is to remit the case to the Industrial Tribunal for re-hearing. Upon the agreed facts, the tribunal should, it is submitted, reconsider the argument based on an implied term. For reasons expressed, I see no merit in the argument, however presented, in the circumstances of this case. The Employment Appeal Tribunal rightly allowed the appeal to them and I would dismiss the present appeal.
SIR RALPH GIBSON: I agree.
LORD JUSTICE BALCOMBE: I agree.
Order: Appeal dismissed with costs.
