Knowles and Another v Fire Brigades Union

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE NEILL,LORD JUSTICE MILLETT,LORD JUSTICE PHILLIPS
Judgment Date31 July 1996
Judgment citation (vLex)[1996] EWCA Civ J0731-4
Docket NumberEATRF 96/0114/B

[1996] EWCA Civ J0731-4

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Neill

Lord Justice Millett

Lord Justice Phillips

EATRF 96/0114/B

(1) Michael Knowles
(2) David Johnson
Appellants
and
The Fire Brigades Union
Respondents

MR J McMULLEN QC and MR J GAVAGHAN (Instructed by Ms J Fogg Elliot, WSC1R 4LR) appeared on behalf of the Appellants

MR L FOX QC and MR N RANDALL (Instructed by Thompsons, HA7 4XL) appeared on behalf of the Respondents

1

( )

2

Wednesday, 31st July 1996

LORD JUSTICE NEILL
3

Introduction

4

The appellants in these consolidated appeals are Mr. Michael Knowles and Mr. David Johnson. The respondent is The Fire Brigades Union (the Union).

5

The appeal is concerned with the circumstances in which the appellants were expelled from the Union on 6 October 1992.

6

The appellants were employees of the Shropshire County Council, working at Telford at a Fire Station known as Tweedale Fire Station. They worked there as full time fire fighters. It was a maintained station, which meant that it was manned by full time fire fighters between 9.00 a.m. and 6.00 p.m. Between 6.0 p.m. and 9.00 a.m. the next morning the station was manned by retained fire fighters. Retained fire fighters are not in full time employment with a fire brigade, but are paid a fee each year to be ready and on standby to be called out for fires. They receive an extra fee for each fire to which they are summoned.

7

The conditions of service of persons employed in local fire brigades are set out in a Scheme agreed by the National Joint Council for Local Authorities Fire Brigades (the National Joint Council). From time to time the National Joint Council publishes a booklet (known as the grey book) containing up to date details of the Scheme. The Union and the National Association of Fire Officers are represented on the National Joint Council and send employees' representatives to meetings of the Council.

8

For many years there has been a difference of opinion between the Union and the employers' representatives on the National Joint Council as to whether full time fire fighters should also be eligible to work part time as retained fire fighters. For about fifteen years between 1961 and about 1976 a system was in force whereby full time fire fighters were free to volunteer to undertake "at stations wholly or partly manned by retained members obligations similar to those of retained members", provided that such arrangements did not prejudice standards of cover. A provision to this effect was included in section II of the 1974 edition of the grey book. In 1974, however, it was decided at the annual conference of the Union to seek the end of this system. It was felt that in the context of a modern highly skilled and technical fire service there was no place for such a system. At first the Union's efforts to make a change met with resistance from the employers, but by 1977 the National Joint Council had decided that whole time retained duties should be phased out. In due course the reference to whole time retained duties was deleted from the grey book.

9

In 1986, however, the employers approached the Union again with a view to the reintroduction of retained duties for whole time fire fighters. It was said that there were difficulties with the recruitment of retained fire fighters in a certain number of fire brigades and it was found that employers were often unwilling to release their employees for fire calls during working time. As a result of this approach the National Joint Council set up a working party to examine the problems. The conclusions of the working party led to a proposal by the employers that whole time retained duties should be reintroduced. This proposal, however, was unanimously rejected by the Union at their annual conference in 1989.

10

On 13 December 1990 the General Secretary of the Union wrote to the members to explain the Union's attitude to the employers' proposals. Towards the end of his letter the General Secretary said:

"The Union has fought over many years for its members in a modern day fire service to have proper remuneration and proper working hours which reflect such a service. Employers and governments have attempted during the same period to lead us back to the 1940's and 1950's. There are problems of recruiting retained personnel in a small number of brigades mainly in the South of England. There are a number of reasons for this, not least of which is that the population living in extremely high cost housing in these areas are not the type of people interested in being retained fire fighters. The employment of whole time fire fighters on retained contracts would not solve that problem as they cannot afford to live in these areas and therefore cannot meet the laid down times of response.

……………….

The employers have stated that should we not reach agreement on this issue by 11 February 1991 they will inform fire authorities that they will unilaterally withdraw from the national agreement which removed the whole time/retained duty system from the scheme of conditions of service as being an appropriate system within the modern day fire service.

The executive council firmly believe that to concede to these threats would lead to our hard won pay, conditions of service and most importantly jobs being decimated by these proposals."

11

The General Secretary ended his letter by stating that the Union's conference would be recalled on 13 February 1991 and that the executive council would recommend inter alia:

(a) The rejection of the reintroduction of the employment of whole time fire fighters on retained contracts.

(b) The commencement of a campaign to eradicate from the fire service the whole time/retained duty system.

12

On 13 February 1991 the recalled annual conference of the Union met in Blackpool. At the conference a resolution rejecting the reintroduction of the employment of whole time fire fighters on retained contracts was carried by a majority of 40,983 votes to 742 votes. On the same day the joint secretary wrote to members of the Union informing them of the result of the voting and asking them to note the decisions of the conference.

13

Meanwhile at local level negotiations had taken place with the Union about the future of the Tweedale Fire Station. In July 1990 it was decided by the Shropshire County Council that the Tweedale station should be reduced to a one pump retained station and that the appellants should be transferred to a fire station at Wellington on a duty shift system.

14

Following the transfer of the appellants to the Wellington fire station they applied, or perhaps were invited, to undertake retained duties at their former fire station at Tweedale. They were both enrolled as retained fire fighters on 15 April 1992.

15

The fact that the appellants had so enrolled came to the attention of the Union. They were summoned to a disciplinary hearing before the regional committee of the Union. This committee recommended that the appellants should be expelled and this recommendation was upheld by the Union's main Disciplinary Committee. On 6 October 1992 the General Secretary wrote to the appellants to inform them that the Disciplinary Committee had resolved that they should be expelled. The second paragraph of the letter was in these terms:

"The decision of the Committee was that you had acted contrary to the policies of the Union in that you undertook retained duties whilst still employed as a whole time member of the brigade in contravention of annual conference policy."

16

The appellants were informed that they had the right to appeal, but they did not avail themselves of this opportunity.

17

The Hearing before the Industrial Tribunal

18

On 27 October 1992 the appellants presented complaints against the Union pursuant to section 66 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act of 1992) claiming that they had been unjustifiably disciplined by the Union. In the notices of appearance by the Union it was contended that the appellants had been expelled for acting contrary to the policies of the Union but it was denied that the expulsion was unlawful.

19

The right which the appellants sought to enforce by their complaints is that enshrined in section 64 of the Act of 1992. Section 64(1) is in these terms:

"An individual who is or has been a member of a Trade Union has the right not to be unjustifiably disciplined by the Union."

20

By section 64(2) it is provided that an individual is disciplined if a determination is made inter alia that he should be expelled from the Union.

21

Section 65 of the Act of 1992 contains a definition of the words "unjustifiably disciplined". So far as is material section 65 provides:

"(1) An individual is unjustifiably disciplined by a Trade Union if the actual or supposed conduct which constitutes the reason, or one of the reasons for disciplining him is —

(a) conduct to which this section applies, or

(b) something which is believed by the Union to amount to such conduct;

…………………..

(2) This section applies to conduct which consists in —

(a) failing to participate in or support a strike or other industrial action (whether by members of the Union or by others), or indicating opposition to or a lack of support for such action;

…………………..

(7) In this section —

'conduct' includes statements, acts and omissions;

………………………"

22

On 14 July 1993 a hearing took place at the Industrial Tribunal at which directions were given as to the future conduct of the proceedings. It was then agreed and directed that a preliminary point should be tried...

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