O'Dea v ISC Chemicals Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE HUTCHISON,LORD JUSTICE BALCOMBE |
| Judgment Date | 28 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0728-1 |
| Docket Number | No EATRF 94/0722/B |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 1995 |
[1995] EWCA Civ J0728-1
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF THE EMPLOYMENT APPEAL TRIBUNAL
Before: Lord Justice Balcombe Lord Justice Peter Gibson Lord Justice Hutchison
No EATRF 94/0722/B
MR J McMULLEN QC (Instructed by Pattinson & Brewer) appeared on behalf of the Appellant.
MR R THOMAS (Instructed by Holt Phillips, Bristol) appeared on behalf of the Respondent.
( As Approved)
The Appellant employee Mr. O'Dea was dismissed by the Respondent employer ISC Chemicals Ltd. on 5 April 1991 on the ground of redundancy. He received a redundancy payment of £13,414. Since 1981 he had been the senior shop steward for the Transport and General Workers Union, spending half his time on trade union activities. He applied to an industrial tribunal, complaining that he had been unfairly selected for redundancy because of his trade union activities and hence that his dismissal was unfair under s.59 Employment Protection (Consolidation) Act 1978 ("the Act"). The industrial tribunal held that s.59 did not make the dismissal unfair, but they also held that under s.57(3) of the Act his dismissal was unfair by reason of a procedural default by the employer: it had failed to tell managers considering him for a vacant post to disregard his trade union activities. However the industrial tribunal deducted 80% of what they would have awarded him to reflect the high probability that his employment would have come to an end even if his dismissal had not been rendered unfair by the procedural default. They awarded £1,670 compensation. Mr. O'Dea appealed to the Employment Appeal Tribunal against the decision that the dismissal was not unfair by virtue of s.59, but they dismissed his appeal. Further, they refused to allow him to amend his notice of appeal to add other grounds based on s.57(3). Mr. O'Dea now appeals to this court with the leave of Waite L.J. It is said on his behalf (1) that the industrial tribunal misconstrued s.59; (2) if that is wrong, that they reached a decision which was perverse because it conflicted with their primary findings; (3) that the Employment Appeal Tribunal wrongly exercised their discretion in refusing to allow the amendments to the notice of appeal.
s.59
I start with the relevant statutory provisions in force at the material time. In determining whether the dismissal of an employee is fair or unfair, the employer is required by s.57(1) of the Act to show what was the reason or principal reason for the dismissal and that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Among the reasons specified in subsection (2) is that the employee was redundant. Where the employer has fulfilled the requirements of s.57(1), then subject to (inter alia) ss. 58 and 59 the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee (s.57(3)).
The policy of the employment legislation is to require an employer to allow an employee who is an official of an independent trade union recognised by the employer to take time off during the employee's working hours to perform his duties as such official (s.27 of the Act). There are corresponding provisions protecting employees who are dismissed for trade union activities.
By s.58 of the Act:
"(1) The dismissal of an employee by an employer shall be regarded 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-
(a) …. or
(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or
(c)…."
By subsection (2) "an appropriate time" is defined in relation to an employee taking part in the activities of a trade union to include 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 those activities.
By s.59 of the Act:
"Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and either-
(a) that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was [one of those specified in section 58(1)]; or
(b) ….
then for the purposes of this Part, the dismissal shall be regarded as unfair."
S.153(1) of the Act defines "position", in relation to an employee, as meaning "the following matters taken as a whole, that is to say, his status as an employee, the nature of his work and his terms and conditions of employment."
The findings of fact made by the industrial tribunal were as follows:
"2. The applicant had been in this employment since 1971. When his employment came to an end he was employed under a contract of service as a technical services operator. In fact he did not do that job at all. Instead he worked as an Isceon packaging operator but spent at least 50% of his time on trade union activities. Therefore whilst he was nominally employed under a contract of service as a technical services operator his actual employment was not in that capacity but as an Isceon packaging operator and a trade union official.
3. The Isceon packaging department in which the applicant was employed was closed as part of a substantial re-organisation. The applicant's position therefore became redundant. The respondents have no agreed procedure or arrangements for the handling of redundancies. When or shortly after the redundancy position was identified they notified the applicant's trade union of the position and commenced consultation and negotiations with them. The respondents adopted the following criteria for handling the redundancy. Firstly they would seek volunteers. Secondly employees in departments that were to be closed as a result of the re-organisation would be made redundant and employees in other departments affected by the re-organisation would be kept on the basis of skills and qualifications and if all things were equal on the principal of first in last out. The applicant's department was closed. He was, therefore, with many other employees left in the position where if his employment was to be retained it would be retained by finding an alternative position for him. The respondents set up a Jobshop to enable employees to apply for alternative posts. Some employees obtained such posts but a substantial number of employees had to be made redundant. The applicant was one of those employees.
4. The applicant was in a special position. He had as a result of that special position access to senior management and was involved from the beginning in the negotiations with the respondents as to how this redundancy situation should be handled. One of the issues which was raised in these negotiations was the matter of the applicant's special position in connection with his trade union activities. That had been the subject of a formal arrangement. In September 1990 the respondents tried to withdraw from this arrangement but in the face of union opposition they agreed to the status quo continuing. That remained the position right up to the time the applicant was dismissed.
5. The matter of the applicant's special position was clarified to him at a meeting that was held between the respondents' management, Mr. Beynon of the applicant's union and the applicant on 20 February 1991. It is clearly minuted in the respondents' minutes of that meeting that the applicant would be treated for the purposes of the redundancy exercise as an ordinary employee. The applicant was initially reluctant to accept this position but ultimately he did so and applied for a number of the vacant jobs. He was well known throughout the workforce for his union activities. These were known to all of the managers who interviewed him in connection with these vacancies. In many of those interviews this made no difference to the outcome. He would not have got those jobs even if he had not been involved in trade union activities. It did however materially affect his chances in respect of two of the positions that he applied for. One of those positions was the position of shift process operator for which he was interviewed by Mr. Fordham. The other was the position of shift process operator which he was interviewed for by Mr. Wear. It is quite clear from the evidence of those two witnesses that the applicant's trade union activities was a factor which concerned and worried them. It is also clear from the evidence that the applicant's position in this respect was not made clear to departmental managers by senior management and that the applicant's own response when questioned about those matters by interviewing managers was not helpful."
Having set out those facts, the industrial tribunal then expressed their conclusions on this part of the case in this way:
"6. We are satisfied that the principal reason for the applicant's dismissal is redundancy caused by this re-organisation and not his trade union activities. Therefore the category of the reason for dismissal for the purposes of ...
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