Appeal No.	 EAT/700/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 1997

Before
HIS HONOUR JUDGE J HULL QC
MR J A SCOULLER
MR A D TUFFIN CBE

MR G MUNRO	APPELLANT

LONDON BOROUGH OF SUTTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS T MUNRO
(Representative)

For the Respondents	MISS A WEEKES
(of Counsel)
The Solicitor
London Borough of Sutton
Civic Offices
St Nicholas Way
Sutton
Surrey
SM1 1EA	

	JUDGE J HULL QC:     This is an appeal to us by Mr Geoffrey Robert Munro, a gentleman who was employed by the Respondents, the London Borough of Sutton, as a vehicle fitter.  He was first employed in 1976 and he worked for the Borough as a vehicle fitter from 1976 until 1985 at any rate.  He is a man who has other skills too, recognised by his fellow-employees and I think his employers too.  In 1985 he was elected branch secretary of NUPE as it was then and carried out those duties.  In 1986 he became joint secretary of the local joint works committee and in that capacity he was given three days off per week for his union activities by the Sutton Borough.  So that represented important responsibilities for the trade unions, as well, of course, as a vehicle fitter and really he was then only two days a week at the most on that.

	Then in about November 1987 he started working full-time on union duties and in November 1988 it was recorded that he was to be recommended as convenor by the borough engineer, who had most dealings apparently with the trade unions.  There were at least three trade unions recognised in this Borough.

	The suggestion that he should be made a convenor; that is to say the representative of all the unions; was approved by the Joint Works Committee on 29 November 1989 and he was appointed formally on 19 February 1990 to the full-time post of joint secretary, incorporating the position of convenor.  And he remained at that post.  He was no longer, of course, doing his work as vehicle fitter for the short reason that he was full-time engaged on these trade union activities.

	Then a difficulty arose which had been foreseen by some at any rate.  What happened if his position as branch secretary should be lost when the democratic election took place?  Would he continue as convenor, what would happen?  That was plainly a potential difficulty and that, unfortunately, duly occurred; on 9 September 1992 the annual general meeting of his trade union appointed another person, a lady, Miss Fordham, to be the NUPE (or I think it would be then UNISON) branch secretary with effect from 1 January 1993.  Perhaps warned by experience, Miss Fordham’s position, which was a very different one from Mr Munro’s, was protected.  A temporary appointment was made for her work with the local authority, so that it was anticipated that should Miss Fordham lose her trade union position and cease to be branch secretary, she could return and the temporary employee would then, no doubt, be asked to go or be moved, or something of that sort.

	What was the proper analysis of these events?  It is agreed both by Mr Munro, who here is represented by his wife, to whom we are very grateful, and by Miss Weekes, of Counsel, who has given us every possible assistance on behalf of the Respondent Borough.  The true position was that Mr Munro was seconded from his job as a fitter, which he had held for so long, to these trade union duties.  He was given time off in accordance with what the law requires.  He became full-time engaged in the activities of the various trade unions, but his salary was still the same salary.  He was paid the same money by the same employers, and it is agreed before us that the correct analysis is that he remained a skilled vehicle fitter, who had been seconded to other duties, in accordance with the law and the practice of his employers.

	What happened (to cut a fairly long story short) was that when he ceased to be the convenor and the joint secretary of the local works committee and so forth, his employers, from September 1992 onwards, were engaged in trying to find him other work.  The number of fitters had greatly decreased during his period of trade union office.  Half the fitters who were employed had gone, and anybody who wants to understand the reality of this, particularly anybody who knows about local Government and trade union matters, will probably already have recognised that a lot of this arose through compulsory competitive tendering, which led to so many local Government workers losing their jobs or finding themselves new employers.  That was behind a lot of what was happening here.

	In spite of these efforts to find other employment, no employment was found.  The view was taken by the employers (and it is alleged by Mr Munro himself) that his job as a fitter had gone.  That, of course, is not the definition of redundancy and it seems to be a shorthand way of saying, “the requirement of the Borough for skilled fitters had greatly diminished”, which of course would be in layman’s terms a redundancy situation.  As to whether Mr Munro himself would be made redundant as a result, that of course would be a matter for a decision after the usual preliminaries of consideration, consultation and so forth.  It would not follow that it would necessarily be Mr Munro who would be made redundant.

	He was in fact dismissed in January 1994 and he complained to the Industrial Tribunal that he had been, as it was put, “unfairly selected for redundancy”.  It was unfair dismissal he said, and the Respondents in their Answer, or the letter which stood for their Answer, which is at page 40 of our bundle, said he was redundant.  They denied that he was unfairly dismissed on the grounds of unfair selection for redundancy.  “The Applicant was dismissed as he was redundant”.  

	So both Applicant and Respondent were saying, “Mr Munro was redundant”, and both now acknowledge and, indeed, we are told, have always acknowledged, that he was and had at all times, throughout this story, been employed as a vehicle fitter.  There was no contention that his contract of employment had been varied; that his duties had been replaced contractually by other duties.  It was said and is said to us today, by both, that he had been seconded to the duties of a trade union representative, a branch secretary, a convenor.  In spite of being assisted by Mrs Munro and by Miss Weekes, it seems to us that the Industrial Tribunal, which sat under the chairmanship of Mrs Gilbert at London (South) on 16 and 17 November 1995, 25 and 26 January 1996 and 26 March 1996, misapprehended the case.  That seems to us to be very clear.  Indeed, it is very clear to Miss Weekes, who had come there prepared to say, “Yes, there has been a redundancy, but Mr Munro has not been unfairly selected for it”, and to acknowledge that he had been seconded only.  He was still a fitter.

	The Industrial Tribunal, though, expressly says it has reached a different conclusion.  We are not going to go right through the decision.  We have been asked to look at various parts of it.  We have all read, of course, the whole decision and Miss Weekes and Mrs Munro have taken us to various particularly important parts of it, as they say they are.

	The Industrial Tribunal record the background, and dealing with the background they say that it was anticipated, expected, on 29 November 1989, when Mr Munro was appointed, that problems could arise if the current joint secretary was not re-elected.  The Council’s side agreed to use its best endeavours to find an alternative post.  It does sound rather as if the germs of a misunderstanding were already in the minds of various people.

	The Tribunal go through the facts.  They record that, so far as the employers were concerned (this is in the middle of page 19) apart from changing his pay to monthly pay, which apparently all the other employees with the same grades were enjoying at the same time, all other conditions would remain unchanged.  That was what the employers said.  And then they record the decision when the lady, Miss Fordham, was elected.  They say that there was a letter written.  There was a letter from Peter Pledger, who had taken over from Penny Jones as area officer, to Mr Gulliver, and the letter stated that as Mr Munro’s former position might no longer be available as a result of compulsory competitive tendering, action should be taken to relocate him.  Then they say:  “The Applicant’s job as vehicle fitter had in fact disappeared”.

	They set out, at very considerable length, the evidence which they heard.  Among the evidence given by Mr Gulliver, who is the chief personnel officer, they record that he said that Mr Munro felt he had moved on from the vehicle fitting type job, and that jobs were being shed and a lot of people were being made redundant.  Mr Gulliver told them how Mr Munro had spent 15 months being paid his full salary while redeployment was being sought.  Some jobs he could not do.  Other jobs were of inferior standing.  Considerable efforts were made to redeploy him in other jobs, not at the job of fitter which was his job.  But these efforts at redeployment failed.  

	The Tribunal was happy that Mr Gulliver and Mr McManus, the Staff Welfare Officer, gave evidence.  They accepted that evidence.  They dealt with the question of redeployment.  They said (and this is at the top of page 23):

“His [the Applicant’s] case was that the new joint secretary/convenor post was not an elected office - the job of NUPE branch secretary was the one he had lost at the election; the job of convenor still remained in existence.”

	They went on to say there were not, in fact, two jobs.  There was just the one joint job.  They then went on to the question of redeployment:

“He [Mr Munro] did not say he wanted a white collar rather than blue collar post.  He was effectively in the personnel department but he would have gone back to the post of vehicle fitter.”

	That is what he told the Tribunal and there is no finding at all that they did not accept his evidence.  They go on, reviewing the evidence which was given to them.  He said:

“He did not agree that every effort had been made to deploy him.  His job as a vehicle fitter had long since gone because of reorganisation.”

	The same expression which, as we have said, is an expression of somewhat doubtful import.  Then they come to their findings of fact which are very short.  They first of all find that there were not two separate jobs, as they call them, of joint secretary and trade union convenor, it was just one job and they say:

“We also find that the Applicant fully understood that the post would be subject to an annual election.  He was present at the joint committee meeting on 28 November 1989.  We find he raised no objection.  He carried out full-time union duties in 1990, 1991 and 1992 until he lost the vote on 9 September without raising any queries.  Where the council’s evidence conflicts with the evidence given on behalf of the Applicant on these issues we prefer the former.”

	And then they refer again at length to submissions.  They set out the law, quite accurately, and they come to their conclusions in paragraph 10:

“The Tribunal finds that the Applicant was not redundant within the definition in section 81(2).”

	So they are rejecting submissions made to them both by the Applicant and by the Respondents.  They go on:

“It cannot be said that the Respondents’ requirement for employees to carry out the work of a convenor, the job the Applicant had been doing for a number of years prior to the AGM on 9 September 1992, had ceased or diminished when Margaret Fordham was doing exactly the same job.  However, we do accept that the Applicant was dismissed for ‘some other substantial reason’ within the meaning of section 57, namely the fact that he lost the election for the post of full-time trade union convenor and so lost his job.  As stated in paragraph 7 we do not accept Mrs Munro’s argument that there were two different jobs [we have already dealt with that] ... .  Following the election he lost the only job he had.  It follows from our finding that the Applicant was not made redundant and that the argument under section 59 of the 1978 Act fails.  ”

	And they find no evidence that he had been discriminated against because of his union activities.  There, it is quite plain that (if I may use the expression without any disrespect to the Industrial Tribunal) they were going off “on a frolic of their own”.  This was something which neither party had put to them.  This concept that his job, his contractual employment, was the job of trade union branch secretary, or joint secretary and convenor, was one which had not been put to them, which was not in any way it seems to us supportable by the evidence and we accept what has been put to us from both sides, that in fact he was seconded to these tasks.  They were not his job.  Nothing had happened to alter his contract, so far as the evidence goes, so far as we understand the evidence.  Of course we have not heard the evidence, but it appears to us that that is the position.

	So the Industrial Tribunal were proceeding on a quite different basis from that which had been put to them.  They go on, on page 28:

“Looking at the steps Mr Gulliver and to a lesser extent Lynn McManus took, we find it impossible to say that the council acted unreasonably.  The vehicle workshop where the Applicant had previously worked as a fitter had undergone a considerable reduction in jobs as a result of the compulsory tendering process and the Applicant’s own job had disappeared.”

	The Tribunal finished up by saying that he lacked the skills for certain of the work which had been found for him and therefore they found that the efforts to redeploy him were reasonable.  

	There, it seems to us, they had taken an entirely illegitimate leap.  If we are right in thinking that the submissions made to us are correct, namely that this was a case of redundancy, or potential redundancy, that this was a case where Mr Munro’s job was, and had been throughout, that of a vehicle fitter, then vital questions were overlooked.  Should it be he, or one of the other employees who remained, who should be made redundant?  Were there proper consultations?  Was the decision to choose Mr Munro fair?  All these matters were entirely ignored and treated as something with which neither employer nor employee need be concerned.

	After finding that he had been dismissed from his job as branch secretary and convenor because somebody else was going to fill it, the only task the Tribunal embarked on was to look and see what efforts were made to redeploy him.  In fact there were, according to a letter, which is at pages 6 and 7 of our papers, no fewer than 5 skilled motor fitters and 2 semi-skilled motor fitters in the department still.  Only one of them was senior, in employment terms, to Mr Munro.  Any employer who had recognised in proper time that this was a redundancy situation regarding a fitter, a skilled motor fitter, would inevitably have said to himself, “Well, if I can’t be persuaded to avoid redundancy here, I shall have to embark on the necessary consultations with the parties, to draw up criteria, to decide which, if any, of these men is to be dismissed and to consider, in consultation, all the circumstances of the case, giving proper warning and so forth”.

	Clearly, the employers had not recognised this situation in time, although there is no doubt that Miss Weekes did and the employers eventually were at any rate beginning to see it, if not perfectly clearly.  The Industrial Tribunal in our view were quite wrong to say that what had happened was that he had simply been dismissed from his employment of union convenor and secretary because somebody else had been elected to the job.  That of course meant that his secondment could no longer be maintained.  It meant that he was still employed as a fitter.  That was his job, a skilled fitter and it was that job on which the Industrial Tribunal and, indeed, the employers first and foremost should have concentrated.  They were under a misapprehension.

	What is urged on us by Miss Weekes, very persuasively and very forcefully is, as a second string to her bow; that notwithstanding that the Tribunal have departed both from the submissions which she made and the submissions which Mr Munro made and gone on “a trip of their own” so to speak, nonetheless we should uphold the findings of the Industrial Tribunal as ones which they were entitled to make.  It seems to us that that is quite impossible.  The Tribunal have not, in any way, adduced facts or referred to evidence, or made findings that Mr Munro’s job was, indeed, employment by the authority as a convenor and branch secretary of a trade union.  That was simply not investigated by them and there is no evidence, so far as we can see, to support such a conclusion in the Chairman’s notes.

	We, as I say, accept that this was simply a case of secondment of a man who was employed as a skilled fitter.  There was, in particular, no new contract of employment or particulars of employment served.  The only particulars of employment which are available to us are the original ones.  Of course, it would have been possible to give evidence, if there had been any such evidence available, that there were discussions or letters setting it out:  “We propose that your new job description shall be that of convenor and branch secretary.  Your new employment will not be permanent employment.  It will necessarily depend on the votes of the members of trade unions”.  Any such thing could probably be produced as a legal result, though a very strange result.  It would have meant that his true job description was one which showed that he was, in fact, subject to a conflict of interest because of course the branch secretary and the convenor are acting, not on behalf of the employers, but on behalf of the union.  But no such evidence was, so far as we can see, adduced and we cannot find anything in the decision to justify such a conclusion.

	Miss Weekes also argued with great fortitude that, even if that were the position, we should say that this is a merely technical point because, in truth, the employers had made great efforts to redeploy Mr Munro and had taken 15 months in that endeavour, which is exactly what they ought to have done, if his job had disappeared.  That, with all respect to the argument, ingenious as it is, makes the same leap of logic which the employers had made, namely that their only duty in the circumstances was to try to redeploy, find fresh employment for Mr Munro.  But of course it was not.  If the true view was that he was at all times employed as a skilled fitter, then there were a number of duties of a very important sort for the employers, if they were going to make him redundant and then endeavour to find him fresh employment, as they should of course, if they are going to make him redundant.  Those earlier steps were simply, so to speak, the subject of an ellipsis as, indeed, is Miss Weekes’ argument to us.

	We think that this Industrial Tribunal misapprehended the position, in spite of the assistance which they received, and went wrong on a most important point.  They should have addressed their minds first and foremost to what had happened to the contract of employment.  What was Mr Munro employed to do?  After his secondment was over, what was the legal position?  There, it seems to us, they went wrong.  

	We are not saying for one moment that there might not be highly material evidence on that point, about which we know nothing.  What is quite clear to us is that we are, as a tribunal of law, only able to identify errors of law.  We cannot go into all these matters ourselves.  We certainly cannot decide what would have happened if the employers had apprehended the position as their representative now acknowledges it was.  What we can do is to say that all these matters must be looked into and approached on a basis which does not involve what seems to us to be a very serious error of law.

	In those circumstances we have no alternative to remitting the matter to another Industrial Tribunal.  It should be differently constituted because we think it would be quite invidious to ask this Tribunal, after their very wearisome and conscientious labours, yet again to re-think the matter.  We therefore say that the case must be remitted to an Industrial Tribunal, differently constituted, to hear the complaint from the beginning.  We hope that it will be a much shorter task than that which fell to this Industrial Tribunal.  

	We have heard nothing to make us think that this Industrial Tribunal was wrong on the matter of how many jobs there were, whether the job of convenor and branch secretary were separate jobs or anything of that sort.  It seems to us that the new Tribunal is likely simply to have to enquire whether this redundancy, as it certainly seems to have been, was properly and lawfully dealt with.  If they should find that there was unfairness in the sense that the employers failed to deal with the redundancy situation properly, whether in the ways alleged or otherwise, then they will of course have to consider points such as, “What would have been the effect if the employers had acted with perfect fairness?” - and in the light of that and other considerations, will decide what the proper measure of compensation is.

	Those are the reasons of us all and that is the decision of us all.