Marley Tile Company Ltd v Shaw
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE GOFF |
| Judgment Date | 12 November 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1112-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1979 |
[1979] EWCA Civ J1112-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
Lord Justice Stephenson
Lord Justice Goff
Lord Justice Eyeleigh
MR A. IRVINE, Q.C. and MR R. FIELD (instructed by Mr S. Davies, Marley Legal Department) appeared on behalf of the Appellants.
MR C. ROSE, Q.C. and MR J. HANDS (instructed by Brian Thompson & Partners) appeared on behalf of the Respondents.
I will ask Lord Justice Goff to give the first judgment.
This is an appeal from the Decision given on the 25th April, 1978 by the Employment Appeals Tribunal, whereby they dismissed an appeal from a Decision of the Industrial Tribunal in Leeds given in September, 1977. that the respondent, Mr Shaw was unfairly dismissed by reason of his havingtaken part in the activities of an independent trade union at an appropriate time. That Union is the Amalgamated Union of Engineering Workers (AUSW) and it is common ground that it was an independent trade union for this purpose.
The respondent joined the appellant company at its factory in Dewsbury as a maintenance electrician on the 4th April, 1977, and he was dismissed on the 27th June, 1977, so that he had not the qualifying period of 26 weeks under the Trade Union & Labour Relations Act, 1974, Schedule 1, paragraph 10, Paragraph 11 however provides: "Paragraphs" (l) (a) and 10 above shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one the principal reason) for the dismissal was an inadmissible reason".
For that one has to turn to paragraph 6, sub-paragraphs(4) and (6) of the same Schedule. The relevant part of paragraph 6 (4) for present purposes is sub-paragraph (b), and the whole of the relevant part reads as follows: "For the purposes of this Schedule the dismissal by an employer shall be regarded as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee (b) had taken, or proposed to take, part at any appropriate time in the activities of an independent trade union".
Then paragraph 6, sub-paragraph (6) says: "Any reason by virtue of which a dismissal is to be regarded as unfair in consequence of sub-paragraph ( 4) or (3) above is hereafter in this Schedule referred to as an inadmissible reason".
The only other relevant statutory provision is contained in Schedule 16, part 111 of the Employment Protection Act, 1975, paragraph 11 of which inserted a new sub-paragraph 6 (4) (a) into the 1974 Act. Paragraph 11 of that Schedule reads as follows:- "After paragraph 6 (4) of Schedule 1 insert the following sub-paragraph:(4A) In sub-paragraph (4) above, "appropriate time" in relation to an employee taking part in the activities of the Trade Union, means time which either - (a) is outside his working hours, or (b) is 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 inthose activities, and in this sub-paragraph 'working hours' in relation to an employee, means any time when, in accordance with his Contract of Employment, he is required to be at work".
That has since been consolidated in the Employment Protection (Consolidation) Act, 1978, Section 58. As the respondent did not have a sufficient qualifying service, he had to prove that he was dismissed because he had taken part in the activities of an independent Trade Union at an appropriate time, and the onus is clearly on him.
Now I accept the law as laid down by the Employment Appeals Tribunal in the case of H. Goodwin Ltd. -v- Fitzmaurice & Others, which is reported in (1977) Industrial Relations Law Reports, page 393. from which I read a part of the Head Note: "Held, the Industrial Tribunal had erred in law in considering whether the reason for the respondent employees' dismissal was redundancy before they considered whether it had been established that the reason for the dismissals was trade union activities. As the employees did not have 26 weeks continuous service, they did not have the right not to be unfairly dismissed unless the reason for dismissal was on grounds of trade union activities within the meaning of paragraph 6 (4) of Schedule 1 to the Trade Union & Labour Relations Act, Thus the correct approach for the Industrial Tribunal would have been to reverse the sequence and to consider first whether the reason for the dismissals was trade union activities. Where it is alleged that trade union activities are the reason for the dismissal, the onus of proof lies on the employee. This means that in such cases it is the employee who ought to begin by submitting his case, since it is only the employee who knows how the case is to be put on that footing and it is desirable that he who asserts should start. However, if the employees, case is not strong, it will only be in exceptional cases that the Industrial Tribunal will be justified in not going on to hear what the employer has to say as to what was the real reason for dismissal. It may be that when the employer's reason is examined that it will be seen not to be the true reasonand thus bolster up what at the outset seemed to be a weak case for the employee".
In Smith -v- Hayle Town Council, which is reported in (1978) Industrial Cases Reports, in which Goodwin -v- Fitzmaurice is not cited, this court, (Lord Denning, Master of the Rolls dissenting) reached the same conclusion, I cite a passage from the judgment of Lord Justice Eveleigh which is at page 1002 between letters E and F: "But when one considers that paragraph is in fact introducing an exception, one bears in mind the principle that it is for the person relying upon the exception to bring himself within it. Once the employer has established paragraph 10, namely, that the employee has not been employed for 26 weeks, the employer, as it were, put up an obstacle to the employee obtaining advantage under paragraph 4. So paragraph 11, in my view, is worded to the intent that, and by the nature of its being an exceptions paragraph, the burden of proof must be upon the employee".
The relevant facts may be summarised as follows: By letter dated 16th June, 1977, Mr Garwell, the District Secretary of the ATJEW, informed Mr Wright, the company's factory manager at Dewsbury, that the respondent had been approved by the Union as Shop Steward for the maintenance section, and when the respondent went to work the next day, Mr Richardson, the works engineer, chaffed him about this. It was suggested in argument that this was an acceptance by the company of the respondent's appointment. However, quite - apart from the fact that it was not a serious act, there was no evidence that Mr Richardson had any authority to act for the company in this behalf, A case for the respondent to act as shop steward seemingly arose when one of the fitters asked him about a suspected disparity in the rate of pay between that fitter and another fitter. The respondent correctly advised him to see Mr Richardson who said that both men were on the same rate of pay, but the respondent did not think that was right. The fitter asked the respondent to raise the matter, as his union representative, so he himself went to see Mr Richardson. That appears not to have been a very happy meeting and the respondent, as he was perfectly entitled to do, requested a meeting with MrWright to discuss the wage differentials. Unfortunately, that meeting, having been arranged, was twice put off by Mr Wright, but there is no evidence that that was due to anything other than a bona fide difficulty caused by pressure of work, Eventually, the meeting did take place on Thursday 23rd June at about 2.30.p.m., but it was abortive because the company were not happy about the respondent being shop steward. They thought he had not been with the company long enough, and they had, as Mr Wright then informed the respondent, written that same day to Mr Garwell to that effect, although they were prepared to consider the matter further if the Union wished to press the respondent's appointment.
This annoyed the respondent, who considered that there had already been prevarication in the two postponments of the meeting and he informed Mr Wright that he was going to call a meeting of his members, that is to say the maintenance men, and that he was going to telephone Mr Garwell. He did not ask permission to do either of these things, and Mr Wright raised no objection. There were in fact five maintenance men on duty at that time, a Mr Coy, the respondent, and three others. The respondent himself went to telephone Mr Garwell, and Mr Coy went to call the maintenance men to the canteen. On his way, he met two shop floor workers, a Mr Cooper and Mr Wiggleswort and they discussed what would happen, whereupon those two decided to ask all the shop floor workers to join the maintenance men in the canteen, and in the result that is what happened.
Meanwhile, the respondent, who had got through to Mr Garwell on the telephone, was informed about the development of the situation and Mr Garwell very sensibly and responsibly advised him to try to persuade the men not to stop work whilst the problem was being sorted out. When the respondent eventually got to the meeting he found the men in an angry mood and that various forms of action were being suggested to indicate their displeasure at the refusal of the management, at that stage at all events, to accept the respondent as shop steward. In the result there was an hours token stoppage to indicate that displeasure.
We do not know what, if any, steps the respondent took to sooth the men down and to carry out the excellent advice which had been given to him by Mr Garwell, but in view of the tribunal's findings as to this hours stoppage, it...
To continue reading
Request your trial
- Zucker v Astrid Jewels Ltd
- Saggers v British Railways Board (No. 2)
-
Mr D Kalirai v Hamton Environmental Services Ltd and Aston Martin Lagonda Ltd: 1304912/2020
...of the qualifying period hurdle. That majority ruling has held sway ever since. It was endorsed by the CA in Marley Tile Co Ltd v Shaw [1980] ICR 72 and again in Maund v Penwith DC [1984] ICR 143 and followed by the EAT in a number of cases and specifically in the context of s.103A in Ross ......
-
McClean vs Simon Community,Jim Dennison
...should not be tempted by the vagueness of the definition to use too broad a brush in drawing their conclusions (Marley Tile Co Ltd v Shaw [1980] IRLR 25, [1980] ICR 72, CA). Examples of the sort of conduct which constitutes participating in the activities of a union (always bearing in mind ......