Mr B O'Toole and Mr S Rohan v DHL Services Ltd: 1300625/2017
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 2017 |
| Citation | 1300625/2017 |
| Court | Employment Tribunal |
| Published date | 07 August 2017 |
| Subject Matter | Unfair Dismissal |
Case Nos. 1300625/2017
1300652/2017
1
EMPLOYMENT TRIBUNALS
BETWEEN
Claimants AND Respondent
Mr B O’Toole DHL Services Limited
Mr S Rohan
JUDGMENT
OF THE EMPLOYMENT TRIBUNAL
HELD AT Birmingham ON 10, 11, 12 May 2017
7 June 2017 (in chambers)
EMPLOYMENT JUDGE Gilroy QC
MEMBERS: Mr N Forward
Mr P Deneen
Representation
For the Claimants: In person (Mr Rohan conducting on behalf of both Claimants)
For the Respondent: Miss Barney (Counsel)
JUDGMENT
The unanimous judgment of the Tribunal is as follows:
1. The Claimants’ claims of automatic unfair dismissal contrary to s.152 of the
Trade Union and Labour Relations (Consolidation) Act 1992 are dismissed.
2. The Claimants’ claims of unfair dismissal contrary to s.94 of the Employment
Rights Act 1996 are dismissed.
REASONS
Introduction
1. The Claimants were formerly employed by the Respondent as LGV/HGV
drivers, based at the Respondent’s Jaguar Land Rover (“JLR”) Automotive site
Case Nos. 1300625/2017
1300652/2017
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at Hams Hall, Coleshill, Birmingham. Each of the Claimants was dismissed and
brought claims of automatic unfair dismissal contrary to s.152 of the Trade
Union and Labour Relations (Consolidation) Act 1992, “TULR(C)A” (dismissal
on grounds related to union membership or activities) and of unfair dismissal
contrary to s.94 of the Employment Rights Act 1996, “ERA”. The Respondent
admitted dismissal in each case, denying that either dismissal was automatically
unfair on the grounds of trade union membership and further denying the claims
of “non-automatic” unfair dismissal.
Evidence and Material before the Tribunal
2. Oral evidence was given on behalf of the Respondent by Stephen Nee (Head of
Employee Relations, Automotive Division of DHL supply chain), Chris
Dockree (Vice President First Tier within the DHL Automotive Division), and
Stuart Carlyon (Vice President Operations, Fuels and Chemicals, DHL TEMEC
Division). The Claimants gave oral evidence and evidence was given on their
behalf by Dominic Hinks (Organiser with the GMB trade union), and Mark
Gorman (former senior steward for Cross-Dock - sometimes referred as
“Xdock” - at Hams Hall, working for the Respondent). The Claimants also
produced a witness statement in the name of Michael Whitehouse (former shop
steward of Unite the Union). The Tribunal explained that in view of Mr
Whitehouse’s non-attendance at the Hearing, with the result that the Respondent
was unable to cross-examine him, it would only attach such weight to his
statement as it considered appropriate.
3. The Respondent provided a Proposed List of Issues, a written Chronology,
written Closing Submissions upon the conclusion of the evidence, and copies of
the following authorities: Drew v St Edmundsbury Borough Council [1980]
IRLR 459 (EAT); Chant v Aquaboats Limited [1978] ICR 643 (EAT);
Chairman and Governors of Amwell View School v Dogherty [2007] ICR 135
(EAT), British Waterways Board (t/a Scottish Canals) v Smith (UK
EATS/0004/15/SM), and Game Retail Limited v Laws (UK EAT/0188/14/DA).
The Claimants also provided joint written Closing Submissions.
4. The Tribunal was provided with witness statements on behalf of all the
witnesses who gave live oral evidence. Reference is made, however, to
paragraph 7 below in this regard.
5. The Tribunal was provided with an agreed bundle of documents [R1]. In
addition, the Claimants provided a small number of other miscellaneous
documents throughout the course of the Hearing.
6. The Claimants also produced some video footage of an internal meeting of
employees at (it is believed) Hams Hall. It was agreed between the parties that
the Tribunal would view this material privately. The footage essentially depicted
the nomination of GMB shop stewards. Both Claimants featured in the footage,
Mr Rohan being particularly prominent.
7. During the course of these proceedings, directions were given for the parties to
exchange witness statements in advance of the substantive Hearing. The
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Claimants failed to serve statements in their own names. The Tribunal declined
the Respondent’s application at the beginning of the Hearing that in the light of
their breach of the Tribunal’s directions, the Claimants should be refused
permission to give oral evidence. The Tribunal used the first morning of the
Hearing as reading time and directed that the Hearing should resume at 2 pm at
which time the Claimants would provide short written statements outlining their
respective cases. The Claimants complied with that direction.
8. During the course of closing submissions, Mr Rohan made reference to the
Respondent having allegedly acted in breach of the Regulation of Investigatory
Powers Act 2000, “RIPA”. As the Hearing was to be adjourned to a later date
for the Tribunal’s deliberations, it was directed that the Claimants provide
particulars of their case under the RIPA, and that the Respondent serve a reply
to those particulars. The parties complied with that direction and the Tribunal
had sight of each side’s written position on this issue before commencing its
deliberations.
The Basis of the Claims under s.152 of the TULR(C)A
9. S.152 of the TULR(C)A provides as follows:
“152. Dismissal of employee on grounds related to union membership or activities.
(1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the
dismissal of an employee shall be regarded as unfair if the reason for it (or, if more
than one, the principal reason) was that the employee -
(a) was, or propose to become, a member of an independent trade union;
(b) had taken part, or proposed to take part, in the activities of an independent
trade union at an appropriate time;
(b)(a) had made use, or propose to make use, of trade union services at an
appropriate time;
(b)(b) had failed to accept an offer made in contravention of Section 145A or 145B,
or
(c) was not a member of any trade union, or of a particular trade union, or of one
of a number of particular trade unions, or had refused, or proposed to refuse, to
become or remain a member”.
10. It was established on the first day of the Hearing that the Claimants based their
case under s.152 of the TULR(C)A on s.152(1)(b), and that the “activities” in
question were seeking to recruit members to the GMB, and seeking the
resignation of members of Unite.
Findings of Fact
11. The Tribunal made the following findings of fact:
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