Appeal No. EAT/409/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2nd February 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR A D SCOTT

	MR S M SPRINGER MBE

MR K W BURGESS	APPELLANT

BASS TAVERNS LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N RANDALL
(Of Counsel)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
LONDON
SW19 1SE

For the Respondents	MR J STOBART
(Of Counsel)
Messrs Andersons
Queen's Bench Chambers
42 The Ropewalk
Nottingham
NG1 5EJ

	JUDGE D M LEVY QC:  This is an appeal by Keith William Burgess from a decision of the Birmingham Tribunal given on the 18th March 1993, the decision being sent to the parties on the 20th April 1993.  There was a further decision on remedy, following a hearing on the 3rd September 1993, with which we are not directly concerned here.

	The issue upon which the Appellant seeks relief from this Tribunal is as to whether he was acting in the course of being a trade union representative at the time when he was dismissed.  The appeal is unusual in that there was a finding that he was unfairly dismissed but what the Appellant complains of is that there was no finding that the principal reason for his dismissal was that he had taken part in the activities of an independent "at an appropriate time" and in the circumstances such dismissal was unfair.

	Paragraph 4 and 5 of the decision of the Tribunal shows part of the differences which lay between the parties below and here.   Paragraph 6 sets out the, more or less, agreed facts.  Paragraph 4 says:
		"The applicant's Counsel [and we have had the same Counsel here as there was below] submits that the applicant was constructively dismissed, the dismissal was unfair, and the reason for dismissal was `an inadmissible reason' and therefore the applicant is entitled to the enhanced compensation applicable thereto."

The quotation of "an inadmissible reason" refers to Section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992 which those who have been familiar with this area of law for a greater time than I have, apparently know as Sections 58(1) and (2).  The material grounds of the Section are as follows:
		"(1)  For the purposes of Part 5 of the Employment Protection (Consolidation) Act 1978 (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 . ."

and in subsection (2) "an appropriate time" is defined in that Section as including (by subsection 2(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."

I return to the findings of the Tribunal:
		"5.	The respondent considers that the applicant abused his position as a trainer manager when he was giving a union presentation to an intake of new trainee managers and that by so doing it entitled them to remove from him the status of trainer manager and the enhanced payment of £750/£1,000.  They consider that their removal of these benefits was a matter for their discretion and that their removal did not justify the applicant's leaving and furthermore he delayed too long."

Pausing on that paragraph for a moment one finds the important finding that the Applicant was giving a union presentation, which appears to fit with what he was entitled to do (this being agreed was an independent trade union) for the purposes of Section 152(1)(b).  One sees what the Managers and what the Company considered, in the next paragraph where some of the material facts are set out:
		(a)	The applicant was considered by the respondents to be an excellent employee;  a man who ran an excellent house, had intelligence and communicative skills and they made him one of their trainer managers which necessitated him giving presentations during a six weeks induction course of trainee managers and also practical training at his establishment which the respondents considered to be run to the highest possible standard.

		(b)	The applicant and the respondents were on good terms.  There was no malice of ill feeling on either side.

		(c)	The applicant was a lay official (shop steward) of the NALM, the National Association of Licensed House Managers and there was prior to this incident no problem between the union and the respondents.  In fact [and this is very important] the respondents on the first day of their induction course always allowed the union to make 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', [and then a significant comment] but within the context of the Induction Course."

Pausing there for a moment, we accept that the Induction Course was the forum during which the trade union activities took place.  But when the Appellant was addressing the court, it was during his time of activities as a representative of an independent trade union as the Tribunal found.  We do not think that it adds anything to the position which we have to examine, that it was within the context of the Induction Course.  The findings of fact continue:
		"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 retain 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 your 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."

In the course of his address Mr Stobart has, very properly, shown us page 32 of the bundle which set out in rather greater length the Respondent's Note of presentation by the Appellant about which the Management complained.  The Tribunal's decision continues at e):
		"Mr Holden-White, retail director, saw the applicant shortly thereafter and discussed the presentation.  During that conversation on the 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 [I use the words that were in the letter and set out in the judgment] gone over the top.  He enquired as to what the position might be and was told that it could result in the removal of his trainer manager status.  There was no further discussion with him whatsoever, he merely received a letter removing him from that position."

Then paragraph 7 deals with constructive dismissal because what happened was that the Appellant was removed from his position and he took that as to be constructive dismissal.  Paragraph 7 reads:
		"Mr Randall argues with some force that had the respondents `actually' dismissed the applicant the reason would have been for taking part in trade union activities at an appropriate time and so entitled his client to enhanced compensation such dismissal being for an `inadmissible reason' [again a reference to Section 152] and he sees no difference between a reason for actual dismissal and a reason resulting in an employee leaving on a constructive dismissal.  This is the clinical approach, but can one look at it in isolation?  The whole concept of constructive dismissal is artificial to an extreme.  What it amounts to is a resignation caused by the employer's conduct . . ."

Then there is reference to certain cases which were referred to during the hearing here as well as in the evidence in the Tribunal.  The judgment continues:
		"This tribunal considers that it should not take the clinical approach but look at the matter `in the round'.  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 members for the union and to continue to foster harmonious relationships between the two.  That was `the reason' for the conduct of the employer that 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."

	For the Appellant Mr Randall says, both to us and in his Notice of Appeal at 6.(1)(a):
		"the reason for the Appellant's dismissal was the manner in which he had made the presentation to new trainee licensed house managers and;

		(b)	when carrying out the presentation the Appellant was taking part in the activities of an independent trade union at an appropriate time;

		It failed to find that the reason or principal reason for the Appellant's dismissal was that he had taken part in the activities of an independent trade union at an appropriate time.  Further, in so doing the Industrial Tribunal acted perversely, contrary to the evidence that was before it and contrary to its own findings of fact.

	(2)	The Industrial Tribunal erred in law in failing to distinguish between the Appellant's duties as a trainer manager and his role as a lay official of the trade union when making the presentation.  The Industrial Tribunal should have found that when making the presentation on behalf of the union the Appellant was acting independently and was not restricted by his position as a trainer manager with the Respondent."

	For the Respondent Company, Mr Stobart says it is implicit in the Tribunal's findings that it did find that the reason or the principal reason for the Appellant's dismissal was he had taken part in the activities of an independent trade union at an appropriate time and he reminds us of the decisions of the Court of Appeal in  Hollister v. National Farmers' Union [1979] ICR 542 in particular to the passage at page 553 where Lord Denning MR said:
		"An appeal to the appeal tribunal lies only on a point of law:  and from that tribunal to this court only on a point of law.  It is not right that points of fact should be dressed up as points of law so as to encourage appeals.  It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there - to see if one can find some little cryptic sentence."

and then he quotes from Lord Russell of Killowen and then goes on:
		"It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal."

	Of course that is dealing with dismissal and not a constructive dismissal.  But here what the factual position undoubtedly amounts to is that in the course of addressing the Induction Course, in his representative capacity, the Appellant was making a trade union speech in which he went "over the top".  It seems to us that notwithstanding what has been urged on us by Mr Stobart, this was quite clearly something which happened in the course of the union meeting, within the subsections of 152, to which I have referred, and it is something which was outside of the role of the employer to discipline him for what he had done.

	The holding in paragraph 7 of the Reasons that this was not admissible for "trade union inadmissible reasons" cannot be reconciled with the finding in paragraph 4(c) that the Appellant "was taking part in the activities of an independent trade union at an appropriate time".

	Both sides have referred us to the well known decision of Lyon & Scherk v. St James Press Limited [1976] ICR 413 and in particular have drawn our attention to the passage at p.419 of the judgment where Phillips J giving a reserved judgment of the Tribunal said:
		"Looked at in this way it seems clear to us that the acts in respect of which the employees were dismissed were done in the course of taking part in the activities of a trade union and that their dismissal for that reason was, in accordance with paragraph 6(4), unfair.  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."

	Mr Randall has drawn our attention to a passage in "Harvey" which suggests that that last sentence which I read from Phillips J may be wrong, but we do not think it is necessary to dwell on that one way or another.  The Appellant's actions which led to his dismissal were clearly done in the course of taking part in the activities of the trade union, and for that reason the dismissal was unfair.  The fact that he admitted shortly afterwards that he went "over the top" in the presentation does not seem to us to make it either unreasonable, extraneous or malicious, if and so far as such acts (per Phillips) would have made it a ground for dismissal which would not be unfair.

	Mr Stobart has also drawn our attention to the last paragraph on page 10 of the bundle Industrial Tribunal's finding where it was said:
		"This tribunal considers that it should not take the clinical approach but look at the matter `in the round'.  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 members for the union and to continue to foster harmonious relationships between the two.  That was `the reason' for the conduct of the employer that 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."

With very great respect to the Industrial Tribunal we feel that having regard to the provisions of Section 152, to which we have referred, this might not be an artificial dismissal for trade union reasons but what the Appellant was doing at the time was acting in a trade union capacity in a way which protected him under Section 192 against dismissal.

	In the circumstances, with respect to the Tribunal, we consider that Mr Randall was right in the submissions which he has made and that there was an error below, and we will hear from the parties as to how they now think it should be corrected.

	Upon hearing further from the parties we order that the Respondents do pay to the Appellant a special award under Section 157 of the Trade Union & Labour Relations (Consolidation) Act 1992 such award to be assessed at £24,697.92.

	We also refuse leave to appeal to the Court of Appeal.