Appeal No. EAT/575/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3rd March 1994
	Judgment delivered on 19th May 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

	MR D A C LAMBERT

	MISS A P VALE

INTERCONNECTION SYSTEMS LTD	APPELLANTS

MRS C GIBSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J HAND QC
Messrs Dickinson Dees
Cross House
Westgate Road
Newcastle upon Tyne
NE99 1SB

For the Respondent	MR J O'HARA
Legal Officer
General Municipal Boilermakers (GMB)
22-24 Worple Road
Wimbledon
LONDON SW19 4DD

MR JUSTICE MUMMERY (PRESIDENT)         This is an appeal from the decision of the Industrial Tribunal held at Newcastle-upon-Tyne on 18th January, 15th February and 1st March 1993.  For reasons notified to the parties on 4th May 1993 the Tribunal unanimously decided that Mrs Gibson had been unfairly dismissed by her former employers, Interconnection Systems Ltd (ISL) who had failed to follow a fair procedure.  ISL appeals by notice dated 9th June 1993.  At the hearing of the appeal leave was given to amend the notice to add a new ground and to delete some of the existing grounds.  The two main issues on this appeal are whether the Tribunal erred in law

	(1)  by substituting its own view as to the reasonableness of ISL's decision to dismiss her; and
	(2)  by holding that Mrs Gibson was entitled to be represented in discussions with ISL and that ISL ought to have taken a more positive approach and arranged representation for her.

The Facts
	The salient facts found by the Tribunal may be conveniently summarised as follows:-

	(1)  ISL manufactures and supplies printed circuit boards in a business acquired from the Plessey Group in January 1986.

	(2)  From September 1983 Mrs Gibson was employed as a quality control inspector in the Final Inspection Department.  From March 1986 she worked on a single shift system.  That suited her domestic arrangements.  She is married to a fitter who works for ISL on alternating shifts.  She has three children.  Alternating shifts would not suit her because, in order to care for her children adequately, she and her husband would have to work on opposite shifts.

	(3)  In order to eliminate the backlog of work ISL wished to introduce alternating shifts in the Final Inspection Department where 20 people worked.  In 1989 and 1990 there were requests for volunteers.  As a result about half of the workforce in that Department volunteered to work alternating shifts.  The rest preferred to work on the single day shift.  From 1990 new recruits went on to alternating shifts.

	(4)  Following a meeting in March 1992 Mrs Gibson and others working on a single shift were sent a letter dated 26th March giving 90 days' notice of the implementation of alternating shifts.  Mrs Gibson and six others refused to accept.  Mrs Gibson said she wished to be represented by her Trade Union and her shop steward.  ISL, which did not recognise her Union, GMB, refused her that facility.  (Plessey Group had recognised GMB)

	(5)  Mrs Gibson expressed an interest in working in the Packing and Despatch Department where there was single shift working.  She was told that her overtime record meant that she would not be considered for that position.  One of the other six, Mrs Gallagher, applied for an advertised vacancy in the Packing and Despatch Department.  The application was not successful, but she was offered another vacancy when that occurred.  Mrs Gibson did not apply for the position because of the paperwork content of the job.  There were three other vacancies.  Mrs Gibson was not offered any of them.

	(6)  Mrs Gibson appealed to the Deputy Managing Director, Mr Benjamin, against the enforced alteration of her terms and conditions of employment.  He was only prepared to consider medical problems as exceptional circumstances.  After extensions to 25th September 1992 Mrs Gibson was constructively dismissed.

	(7)  Mrs Sandra Pace, who also refused to go on alternate shifts, was transferred on to a single day shift in the Packing and Despatch Department because she was diabetic.

The Decision of the Tribunal
	In her Notice of Application presented to the Tribunal on 2nd October 1992 Mrs Gibson complained of unfair dismissal.  She stated that she was unable to change from day working hours to alternating shifts due to family commitments.  Her appeal and her request for other suitable employment within ISL was rejected.  ISL contested her claim on the grounds that Mrs Gibson had not been dismissed from her employment.  Their case was that she had resigned on 25th September 1992.  They were willing to reinstate her as an inspector in the Final Inspection Department provided she agreed to work the double day shift system.  ISL has an overriding need to operate a double day shift.  All other employees were working those hours.  It had been explained to her that an exception could not be made in her case.  She was the only one who was seeking to work a single day shift.

	The Industrial Tribunal resolved the dispute between the parties as follows:
	(1)  There was a good commercial reason for the reintroduction of alternate shifts in the Inspection Department.

	(2)  Working alternate shifts would have put great strain on Mrs Gibson's family life.

	(3)  The perception that she would not be willing to work overtime barred her from consideration for alternative single shift work.

	(4)  ISL took a negative approach to union recognition and to the issue of Mrs Gibson being represented by her union representative during the discussions.

	(5)  Because Mrs Gibson did not ask for union representation, ISL concluded that there was no requirement for her to be represented.

	(6)  Mrs Gibson was "entitled to be represented" by her union and ISL should have arranged for her representation.

	(7)  It was not reasonable for ISL to draw a distinction between medical problems and family problems.  Mrs Gibson should have been treated in the same way as Mrs Pace.  Her dismissal was unfair.

The Submissions of ISL
	On behalf of ISL Mr John Hand QC submitted that the Tribunal erred in law in the following respects.

	(1)  The Tribunal substituted its own views for those of the employer in holding that the dismissal was unfair, because the distinction between family problems and medical problems was unreasonable.  The distinction drawn and acted upon by ISL fell within the range of reasonable responses available to a reasonable employer.  ISL were entitled to treat Mrs Pace as not being in a similar position to Mrs Gibson because of her medical condition.  There was unchallenged evidence that of the remaining six employees at least four, including Mrs Gibson, were in a similar position to each other in that switching to alternating shifts would have resulted in similar family problems.

	(2)  The Tribunal wrongly held that Mrs Gibson had an entitlement to be represented when it was found that ISL did not recognise the Union, GMB.  There was no duty on ISL to advise Mrs Gibson of any alleged entitlement.  There was no positive duty on ISL to make provision for or arrange representation.  That would tantamount to requiring ISL to recognise GMB for representational purposes.

The Submissions of Mrs Gibson

	On behalf of Mrs Gibson, Mr O'Hara submitted that the Tribunal did not err in law.  He submitted that
	(1)  ISL's unilateral variation of Mrs Gibson's shift pattern from a single shift to a double day alternating shift amounted to constructive dismissal.

	(2)  The dismissal was procedurally unfair for two reasons.
		(a)  ISL's policy of disregarding domestic and family circumstances and in giving weight only to medical problems when considering whether to attempt to find an alternative position for employees facing difficulties in working alternating shifts.
		(b)  The negative approach adopted to Mrs Gibson's representation.

	(3)  The Tribunal found, and the evidence supported that finding, that ISL had a policy that an employee's family and personal circumstances (other than a medical condition) would not be taken into account as grounds for considering attempts to transfer to alternative employment rather than require her to work alternating shifts.  The possibility of a transfer to alternative employment was not considered.

	(4)  The Tribunal was entitled to come to the conclusion that such an inflexible policy was so unreasonable as to render Mrs Gibson's dismissal unfair.  A reasonable employer would have taken account of all the circumstances of each case, including domestic difficulties, in considering the reallocation of work.  ISL never even considered that alternative.

	(5)  Mrs Gibson's contract of employment contained a clause that her union, General Municipal Boilermakers (GMB), was recognised by ISL which would consult regularly and cooperate with it.  That contract had never been amended.

	(6)  There was no formal step of union de-recognition by ISL.  It seems, as the Tribunal said, that "union recognition in practice fell into disuse".

	(7)  Mrs Gibson sought to be represented by her shop steward, but was refused permission to do so.  The Tribunal was entitled to find procedural unfairness in the failure of ISL to take a positive approach to representation of Mrs Gibson.

	(8)  Whether representation would have made a difference is a matter relevant to the amount of compensation payable to Mrs Gibson for unfair dismissal.  There has in fact been a remedies hearing by the Tribunal since the decision under appeal.  At the Tribunal hearing on 8th September 1993 it was decided that Mrs Gibson's compensatory award should be reduced by 40%, because the adoption of a correct approach to representation would have made a difference, though there was a risk that she might in any case have failed to secure another job.  If she had been fully consulted and properly represented she would have been considered for three alternative posts in the Packing and Despatch Department.  Evidence would have emerged of her willingness to try and work overtime and consequently she would have had a good chance of securing one of those jobs.

Conclusions
	In our judgment, ISL has failed to demonstrate any error of law on the part of the Tribunal and this appeal should accordingly be dismissed.

	The crucial part of the Tribunal's decision is contained in paragraphs 18, 19 and 20:- 

		"18.  We therefore went on to consider whether the respondents acted reasonably in treating that as a ground for dismissal under sub-section 3 of section 57 of the 1978 Act which requires us to take into account the size and administrative resources of the employer's undertaking and to consider the matter in accordance with equity and the substantial merits of the case.  We judged that the respondents fell short of the standard to be expected of reasonable employers in the following respects.

		 19.  Principally, we do not think the distinction they made between Mrs Pace and her medical problem and Mrs Gibson and her family problem was reasonable.  Mrs Gibson's difficulties were genuine and real and should have been recognised as such by the respondents who should have taken the same purposeful approach to finding her alternative employment as they did for Mrs Pace.  It will be necessary to explore to the extent to which such a purposeful approach would have made any difference.

		 20.  Second, we consider that the respondents did not act reasonably in the negative approach they took towards Mrs Gibson being represented by her union throughout the discussions.  Whether or not there existed at the relevant time a recognition agreement between the respondents and the GMB, Mrs Gibson was entitled to be represented, and it is not, in our view, good enough for the respondents to say that she did not insist upon such representation.  They should have taken a more positive approach and arranged representation."

	Our views on the crucial paragraphs in the decision are as follows.

	(1)  On the issue of the distinction between Mrs Pace with her medical problems and Mrs Gibson with her family problems, the Industrial Tribunal properly applied S.57(3), as referred to in paragraph 18 of the Decision.  The Tribunal applied the standard to be expected of a reasonable employer.  The Tribunal did not apply its own standards and there is no question of substituting its own standards of reasonableness for those of the reasonable employer.  In brief, there was no misdirection on the part of the Tribunal.  It is not argued and could not be argued that the decision of the Tribunal was perverse in the sense that no reasonable Tribunal, properly directing itself to the facts and the relevant law, would have reached the same conclusion.

	(2)  On the question of representation, we are unable to find any error of law.  The Tribunal found that the evidence about union recognition was "not very clear".  The Tribunal found as a fact that Mrs Gibson believed that ISL recognised her Union along with a number of other unions.  She had been given, as part of her contract of employment dated February 1986, a document which read under the heading "Recognition"
		"The Company recognises the following Trade Unions which are entitleded to represent their members' interests and with whom ISL will consult regularly and cooperate fully."
	The list of unions included GMB.  The position by 1989 was that ISL no longer recognised the unions, but there had, it appears, been no formal de-recognition of the unions.  All that seems to have happened was that union recognition had fallen into disuse.  For that reason ISL chose to rely on direct consultation with employees about the change in shift patterns rather than consultation with the unions.  We are unable to  conclude that that the Tribunal erred in law in holding that a reasonable employer would have taken a more positive approach towards Mrs Gibson being represented by her Union throughout discussions.  Allowing her to use a union representative in discussions would not force recognition of the union on to ISL.  In the light of the past history of the matter it was not unreasonable for Mrs Gibson to request representation by her shop steward.  The Industrial Tribunal was entitled to come to the conclusion that ISL fell short of the standard expected of a reasonable employer in adopting a "negative approach" to the question of Mrs Gibson's union representation.

	For these reasons we are unable to find an error of law in the decision of the Tribunal and this appeal will be dismissed.  Leave to appeal is refused.