Appeal No. EAT/250/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12 May 1992
	Judgment delivered on 22 October 1992

	Before

	HIS HONOUR JUDGE N HAGUE QC

	MR J D DALY

	DR D GRIEVES CBE

I McLACHLAN 	APPELLANT

SADDLERS (a Firm)	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr J Bowers
	   (of Counsel)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
LONDON WC1N 3HA

For the Respondents	No appearance or
	representation by or on
	behalf of the Respondents

	HIS HONOUR JUDGE HAGUE QC:    This is an appeal brought by Mr Ian McLachlan against the Decision of an Industrial Tribunal sitting at Bristol sent to the parties on 8th March 1990.  The finding of the Tribunal, by a majority, was that Mr McLachlan had not been unfairly dismissed by the Respondents, Saddlers.

	Saddlers appears to be a partnership firm which at the material times carried on business of manufacturing kitchen equipment at a unit on an industrial estate at Pewsey, Wiltshire.  One of the partners was Mr B Hiscock, who represented the firm at the hearing before the Industrial Tribunal.  Another partner was Mr Hurkett.  Although the firm was at one time represented by solicitors for the purposes of the appeal, it was not represented and did not appear before us.  There is some indication that the firm is no longer carrying on business.

	Mr McLachlan began employment with the firm on 4th May 1988 as an unskilled production worker.  He got the job because his wife was friendly with Mr Hiscock's wife.  Mr McLachlan was dismissed by the firm on 22nd September 1989.  He had thus been employed by the firm for under two years and so, by reason of S.64(1)(a) of the Employment Protection (Consolidation) Act 1978 as amended, was precluded from making a claim for unfair dismissal except on the ground specified in S.58(1) of the Act.  That subsection reads so far as material as follows:
	"... 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)  was, or proposed to become, a member of an independent trade union, or

	(b)  had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time. ..." 

	In paragraph 2 of the Reasons for their decision the Tribunal made the following findings:
	"... The applicant's performance at work had not always been satisfactory and Mr Hiscock complained to him about this on many occasions.  Whenever those complaints were made his attitude was acceptable in that he agreed to do better.  He was moved to other jobs because of his deficiencies.  He had a tendency to take off odd days.  He says he always notified the respondents when he did this but we prefer the evidence called by the respondents on this issue and find that he did not do so.  He received a written warning dated 9 December 1988 which reads as follows:-

	`WARNING LETTER

	First and Final

	We refer to your action on Wednesday, 7th December, 1988 when you absented yourself from your workbench and left the premises.  "A machine was not available", is a completely unacceptable reason.

	This is to inform you that the Company views this very seriously and that further misconduct will result in instant dismissal.'

	He considered that this warning was unjustified.  He says that there was no work available for him and he only left after consulting with the respondents' office.  He tore up the written warning when it was handed to him.  The respondents say that other work was available.  It seems to us unlikely that they would have issued a written warning if what the applicant says is true.  We are therefore inclined to the view that the respondents had genuine reasons for issuing this warning." 
There was ample evidence before the Industrial Tribunal entitling them to make these findings of fact, which accordingly cannot now be challenged.

	Mr McLachlan appears to have started his trade union activities some months later, in August 1989.  He joined the Transport and General Workers Union ("the Union") in that month, and approached other employees with a view to getting the Union recognised by the firm.  He also approached the Union District Officer, Mr Weeks.  Mr Hiscock and Mr Hurkett were not approached directly by Mr McLachlan or Mr Weeks, but they became aware of the situation from other employees of the firm.

	An arrangement was made that Mr Weeks would address a meeting of those employees who were interested in joining the Union, at the firm's premises during the employees' lunch break on Thursday 14th September 1989.  This appears to have been arranged by Mr McLachlan, but neither he nor Mr Weeks had any contact with Mr Hiscock or Mr Hurkett about it.  Mr Hiscock and Mr Hurkett got to hear of this arrangement and waited for Mr Weeks to arrive.  When Mr Weeks arrived, there was a heated discussion in which Mr Weeks was told that he could not hold a meeting on the firm's premises and it would have to be held elsewhere.  Mr Hiscock also said that if any employees went to the meeting they would have to clock out; it was not the practice for employees to clock out for the lunchtime break.  In the event, the proposed meeting did not take place that day.

	Mr McLachlan gave evidence that Mr Hurkett threatened him that day with the sack.  The Tribunal accepted Mr McLachlan's evidence on that point (the decision states that Mr Hiscock made the threat, but the Chairman subsequently accepted that this was an error for Mr Hurkett).  Exactly what the threat was, i.e. the circumstances in which Mr McLachlan would be sacked, are not entirely clear and we suspect they were not made entirely clear at the time.  The circumstances may have been any further trade union activity generally, or may have been any further union activity at the firm's premises (which is perhaps a rather different matter).       

	The next relevant events took place on Monday 18th September 1989.  The Tribunal found that on that date Mr McLachlan failed to complete a canopy which he had been asked to finish that day, and that this resulted in Mr Hiscock and Mr Hurkett having to do overtime to complete it.  There was evidence that Mr Hiscock spoke to Mr McLachlan about this failure.  On Thursday 21st September 1989 Mr McLachlan was absent from work.  He gave evidence he had telephoned the previous day to say he would be absent as he had a migraine, but the Tribunal found that his evidence in that respect was unconvincing and that they were not satisfied he took that step.

	Matters came to a head on Friday 22nd September 1989.  In the lunch break on that day, Mr Weeks held a Union meeting at a local public house which was attended by about 20 of Saddlers' employees, including Mr McLachlan.  On the same day Mr McLachlan failed to complete two end shelves he was asked to finish that day.  There was evidence that he was given these items at 8 a.m. in the morning, that they should have taken 3 hours each, but that at the end of the day they were not even half finished.  In his evidence, Mr McLachlan gave reasons why he had not completed this work, as to which the Tribunal said this -
	"We find his evidence in this respect unconvincing.  He says that the respondents set him this work to catch him out.  We are not convinced that this was the case.  We are influenced in this respect by what happened on 18 September 1989.  Our impression is that by this time the applicant was failing to perform his work satisfactorily."

	Between about 4.15 and 4.30 that afternoon, Mr Hurkett dismissed Mr McLachlan, at a short meeting at which Mr Hiscock and Mr Thompson, a senior partner in Saddlers, were also present.  Mr McLachlan gave evidence that Mr Hurkett had said this was because he had not met their productivity requirements and standard of work.

	The industrial members of the Tribunal found that the principal reason for Mr McLachlan's dismissal was not his trade union membership or activities but his failure to do his work properly.  They considered that there would have been no dismissal if he had done his work properly on the 18th and 22nd September 1989, and found that those failures were the principal reasons for the dismissal.  The Chairman of the Tribunal found on the balance of probabilities that Mr McLachlan's trade union activities were the principal reason for his dismissal, although he found that by inviting Mr Weeks to Saddlers' premises without consulting Saddlers and by his failure to do his work properly on the 18th and 22nd September 1989 Mr McLachlan had substantially contributed to his dismissal and that it would be just and equitable to make a 75% deduction in the compensation.

	Mr Bowers on behalf of Mr McLachlan put forward a number of arguments in support of his contention that the decision of the majority was flawed and unsatisfactory, and that the claim should  be remitted to a differently constituted Tribunal for a re-hearing.

	Mr Bowers' first main point was that the majority had misidentified as a reason for dismissal Mr McLachlan's "unexplained absences".  He emphasised that under S.57(1) and (2) of the 1978 Act, the onus is on the employer to show the reasons for dismissal, which must be reasons in existence at the time of dismissal, and he referred in that connection to Maund v. Penwith District Council [1984] ICR 143 per Griffiths LJ at p.148 and Abernethy v. Mott, Hay & Anderson [1974] ICR 323 at p.329D.   Those reasons must be made known to the employee at the time, and cannot be supplemented subsequently.  Even if an additional reason then existed, it cannot be relied on by an employer who did not give it at the time.  In the present case, said Mr Bowers, no mention was made to Mr McLachlan of his "unexplained absences" (and in particular his absence on 21st September 1989), and so the majority of the Tribunal were not justified in relying on them.  In our judgment, there is no substance in this point.  On Mr McLachlan's own evidence it is clear that Mr Hurkett gave his failure to meet productivity requirements as one of the reasons for dismissal, and we consider that this sufficiently included absenteeism.  Such a failure can be attributable as much to absenteeism as to slow work when present.

	Mr Bowers' other main point was that the majority of the Tribunal had given insufficient reasons for rejecting the inference that Mr McLachlan had been dismissed by reason of his union activities, and failed to deal with the evidence to that effect.  In particular he instanced (1) Mr McLachlan's evidence that Mr Hurkett had said that Saddlers saw no need for a union; (2) Mr Hurkett's attitude to the Union meeting being held; (3) what he described as "the aura of intimidation" created by Mr Hurkett's insistence that employees should clock out to go to the meeting and thus be identified; (4) Mr Weeks' evidence of Mr Hiscock's abusive attitude to him; (5) the evidence of Mr McLachlan that a chargehand, Mr Brian Roberts, had said to him "Its been nice knowing you, you won't be working here much longer"; and (6) Mr Hurkett's statement in cross-examination that he couldn't answer why Mr McLachlan had been dismissed on 22nd September.  As to (5), we reject Mr Bowers' suggestion that it had to be inferred that Mr Hurkett or Mr Hiscock had told Mr Roberts beforehand that Mr McLachlan was going to be dismissed.  As to (6), we think it is clear that Mr Hurkett was saying no more than he could give no reason why Mr McLachlan had not been dismissed earlier in view of his earlier failures, and that it is a reasonable inference that Mr Hurkett regarded Mr McLachlan's failure to complete the end shelves on that day as the last straw.

	In our judgment, there is no substance in the foregoing point.  The majority of the Tribunal had ample evidence before them to arrive at the conclusion which they did.  The matter was plainly one for their decision on the evidence which they heard, which included the past history and the warning letter of 9th December 1988 as well as the events in September 1989, and there was no necessity for them to give more detailed reasons.  It is impossible to stigmatise their decision as perverse.

	There are two further matters raised at the hearing before us which we should mention.  First, reference was made to a letter dated 20th September 1989 sent by Mr Weeks to Saddlers, complaining of intimidation of Mr McLachlan.  It is unclear exactly what incidents this letter refer to.  Saddlers did not reply to that letter, but Mr Hiscock drafted a reply which he sent to Saddlers' solicitors on 22nd September 1989 immediately after Mr McLachlan's dismissal.  Mr Bowers submitted that this letter was not an honest one.  We cannot accept that the evidence leads to that conclusion, which is not consistent with the findings of the majority of the Tribunal; but in any event, as the letter was subsequent to the events in question, we do not consider it to be of any importance one way or the other.

	The second matter was a suggestion, made in paragraph 3 of the Notice of Appeal, that the Tribunal had made a finding about the events of 18th September 1989 without any oral evidence and that Mr McLachlan was not cross-examined about them.  However, the Chairman's Notes show that Mr Hiscock did give evidence about them.  Mr McLachlan gave further evidence in chief and was cross-examined after Saddlers' witnesses had been called, and so had the opportunity to contradict Mr Hiscock's evidence.  In our view, there was ample evidence to justify the Tribunal's finding.

	For these reasons we dismissed this appeal.