Appeal No. EAT/449/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21st September 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS J W COLLERSON

	MRS P TURNER OBE

BELOIT WALMSLEY LIMITED	APPELLANTS

MR P CROSS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR N GRUNDY
(Of Counsel)
Porter Hope & Knipe
20-22 Bowkers Row
Bolton
BL1 1JL

For the Respondent	MR D BERKLEY
	(Of Counsel)
	BRIAN THOMPSON & 	PARTNERS
Acresfield
	8 Exchange Street
	Manchester
	M2 7HA

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 8th January 1990 Mr Paul Stewart Cross brought proceedings against his employers alleging that he had been unfairly dismissed for trade union activities. 

	The Tribunal sat on the main issue of liability for three days in May and July 1990 and found in his favour.

	The jurisdiction of industrial tribunals for allegations of unfair dismissal depend upon the provisions of Section 64 of the Employment Protection (Consolidation) Act 1978 and that provides for a qualifying period where there is an allegation of unfair dismissal of two years.  By subsection (3) it indicates that this qualifying period shall not be necessary if it is shown that the reason, or if more than one, the principal reason for the dismissal was one of those specified in Section 58(1).  If one refers to Section 58(1) that reads:
". . . the dismissal of an employee by an employer shall be regarded for the purposes this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee -

(a). . .

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

As everyone knows, the first two subsections of Section 57 deal with the reason for a dismissal and subsection (3) deals with the overall consideration of reasonableness and fairness.  In the present case no question of unfairness arises because the dismissal is automatically unfair and can be brought within the 2 year qualification period if, the employee, that is Mr Cross in this case, proves on the balance of probabilities that the principal reason for his dismissal was that he had taken part in trade union activities.  So much for the law.

	Mr Cross was employed by the Beloit Walmsley Ltd, the Respondents.  He worked in the foundry, he was a trade union official, he was a shop steward and on the Health & Safety Committee.  There had been a number of matters where Mr Cross had been involved with management in trade union activities.  Those incidents are referred to in paragraph 9 of the Judgment of the Industrial Tribunal.  First of all in date order, there had been two incidents, early in October 1989 when the dressing shop foreman, Mr Shepherd, had had two altercations with Mr Cross in connection with safety matters and Mr Shepherd had said to him "that he would get him sacked" or words to that effect, on each of those occasions.  Then there was an occasion on the 23rd October 1989 when a memorandum had been sent in by Mr Cross and the convenor Mr Crausby in connection with grievances;  that was a memorandum to Mr Tyrer, and it raised a number of matters.  Then there was a letter on the 13th November 1989, when the factory inspector had been brought in, in connection with complaints of conditions in the dressing shop.  Lastly on the 5th December 1989, there had been some language used at a Joint Safety Committee.  It was clear that Mr Cross was very active and it is also clear that the members of management were conscious of his activities and his activities, as the Tribunal found, could well have been, a thorn in the side of management.  In fact Mr Cross was dismissed on the 5th January 1990 and he received a letter of the 9th January giving him the reason for his dismissal.  The reason for his dismissal was expressed thus:
"On the 14th December 1989, Mr F Lee reported an accident to the First Aid Room.  He claimed he had fallen in the shot blast cabinet and hurt his ribs.

At a later date it came to our attention that Mr Lee had not fallen as he had stated but had been involved in an incident the previous week in which you and other colleagues had physically assaulted him.  It was claimed that you had grabbed Lee around the chest and shoulders and you and a second person had dragged him to a third employee with the intention of taping his hands together, despite his protestations that you were hurting him.

At your interview you did not deny this claiming it was only a prank and you did not realise that you were hurting Mr Lee.

It is also claimed that you were involved in an attempted deception to pass the reason for Lee's rib injury as an industrial accident and it is also claimed that as late as 2nd January, when the Safety Officer interviewed Mr Lee you were still advising Mr Lee to maintain his story of a fall in the shot blast cabinet.  You deny being involved in this action.

The Company have considered all the evidence and statements made and have concluded that your irresponsible behaviour directly resulted in injury to Mr Lee and that behaviour of this kind is totally unacceptable to the Company at any time and secondly despite your denials, that you put unacceptable pressure on Mr Lee to maintain his industrial injury story as you realised the truth would be against your interests."

	The way in which this came about is set out in that letter in broad terms, the Tribunal found that there had been the incident broadly described and that various investigations had taken place.  The investigations had stretched over the early part of January, in that the management had discovered that there had been a later report to the Nurse about the injuries on that occasion.  The sequence of events was that the incident took place at 3.30 on the 8th 1989 and it was not until the 14th December that Mr Lee reported to Nurse that his ribs were painful and indicated that he had fallen in the Shot Blast Department;  he was in fact sent to hospital;  he complained about breathlessness and injury to his ribs and he was x-rayed;  he was away off until some weeks subsequently, although it is right to note that the Christmas Holiday took place in between.

	On the 18th December a second accident report was prepared by the Nurse upon information from another employee, a Mr Monks, and that indicated that Mr Lee did not suffer the injury as a result of a fall, but that it was as a result of this "horseplay" possibly it could be called "an assault" by others including the Applicant, Mr Cross, in the shop floor.  Mr Cross, Mr Birchall and Mr Pover were all involved, and as a result of that information further investigation took place.  Mr Lee was interviewed by a Mr Forkgen and then during the afternoon by Mr Greenwood, the Managing Director.  He was only involved because the Personnel Director was sick.  Then Mr Birchall was seen, shown Mr Lee's statement and he admitted that that statement was correct.  Thereafter, management considered the matter;  Mr Pover was interviewed;  they looked at the evidence and the decision was reached by Mr Greenwood in the following way, that Mr Pover and Mr Birchall were suspended but Mr Cross was dismissed.  He issued his Originating Application on the 8th January even before receiving the letter of dismissal.  There was an external conference appeal hearing, there was agreement to differ but the appeal was dismissed.

	The law in connection with this type of issue has been the subject of examination over the years, but it seems to us that as a result of the various decisions the course which is open to a tribunal is really a comparatively simple one in law although it may be very difficult to reach decisions of fact.  The law is set out, entirely accurately, in the first part of paragraph 4 of the Judgment.  The learned Chairman says this:
"I turn therefore to the law within which the Tribunal work in a case of this sort.  Section 58 of the Employment Protection (Consolidation) Act 1978 has a special provision about a dismissal which takes place if, as the Section says, the reason for it or, if more than one, the principal reason, was the employee's trade union activities.  Such a dismissal is automatically unfair without going into the employers' reasonableness or unreasonableness as with other sorts of dismissal.  In that Act also there is a provision that when a dismissed employee has less than 2 years' qualifying service, then it falls to him to show before the Tribunal what the reason was for his dismissal.  This is a reversal of the normal rule in Section 57 for unfair dismissal cases, where it falls to the employer to show the reason for a dismissal.  The nature of that obligation thus made upon the employee to show the principal reason has been discussed in a number of cases."

He then cites two Authorities which we do not find helpful, and indeed, may have tended to have given grounds for the criticism made before us today by Mr Grundy for the employers.  The burden being on the employee as was pointed out in H Goodwin Limited v. Fitzmaurice [1977] IRLR 393 by Phillips LJ presiding over this Tribunal, it is for the employee to begin and it would be a rare occasion where an industrial tribunal stopped a case at the end of the employee's evidence, because, generally speaking, if he raised a case that merited some answer then one would look to see what the reason was.  Many of the cases were redundancy cases;  this case is distinguishable from those cases in that there was here quite a serious assault, however, the seriousness of the assault is perhaps of collateral relevance because the point taken is that there was a distinction being made between the three men involved and that that distinction whereby one of them was dismissed and the others were not, was not one which was an honest and genuine distinction to be made and that the reason for the dismissal, as opposed to suspension, was based upon trade union activities.

	We were referred to Smith v. Hayle Town Council [1978] ICR 996, the facts of which are not strictly material, but where Everleigh LJ says at page 1003 at A:
"So one comes to consider whether the facts in this case did entitled the Industrial Tribunal to come to the conclusion that it did.  I would have been inclined to think that, when one asks for the reason of corporate action, the action of all concerned in arriving at that decision should be considered and the court should make up its mind, from all the material available, what the corporate mind was thinking.  In this particular case certainly one voter voted because of an anti-union prejudice. But can it be said that that should be regarded as the principal reason. or must one be driven to the conclusion - for that is the kind of test we have to apply - that that was the principal reason?  It seems to me that, as emphasis is laid in various parts of this Act upon the words `principal reason,' the Schedule contemplates that there can be other reasons that operate, but they may not be the principal one. From  it follows that there may be some form of anti-union prejudice that could exist, but nonetheless that would not so cloud the issue as to make an anti-union sentiment the principal reason.  That would seem to be, if I had to decide this case on a question of fact myself, the result on the evidence of this case.  There was an element of prejudice, but it does not shine through, nor has it been shown to be the principal reason. In my view, bearing in mind the right of appeal is in law only, it is not possible here to say there are no grounds on which an industrial tribunal could come to the conclusion that it did."

That direction on the law might have been found by the Industrial Tribunal to be far more helpful as it points to the issue which was so clearly enunciated by Griffiths LJ as he then was, in Maund v. Penwith District Council [1984] ICR 143 at p.151 at D, where he says:
"To my mind, these passages, and many others, show beyond peradventure that the tribunal was applying its mind to the real issue raised in this case, namely, whether or not the employee was dismissed for redundancy or whether redundancy was merely the pretext that cloaked his dismissal because of his union activities."

In other words the issue in the present case was, has Mr Cross proved on the balance of probabilities that whereas there may be conflicting reasons for his dismissal that the principal reason was his trade union activities.

	The Tribunal have been criticised in a number of ways, they are criticised for having based their Decision upon the evidence they heard at the Tribunal, in other words, instead of taking the course which would properly have been taken in an unfair dismissal claim, namely to look at the evidence available at the time of the decision to dismiss, the Tribunal saw and heard witnesses and, as paragraph 7 and 8 quite clearly indicate, they formed views about the matter on the evidence that they heard at the hearing.  By so doing, in our judgment, they erred in law in the approach which they took.  The issue for them was whether they were prepared to disbelieve or to reject the reason given by Mr Greenwood for the distinction that he made between Mr Cross and the other two.  The reasons which he gave for that distinction are to be found in his evidence at p.37 where he was asked by Mr Grundy, for the Company,
"Why distinguish in your treatment between Cross, Pover and Birchall?  Answer - `Birchall was not involved in the injury but in the concocted story.  Pover had helped with the injury but was on sick leave on the 2 January.  Cross was involved in all 3 elements.  That is, the injury, the concocted story and maintaining the concocted story on the 2 January.  Lee said he was scared of Cross and I believed him, having seen him.  This was not the same in relation to Pover and Birchall, and this also influenced the different treatment.'"

So that, the reason for the distinction could be summarised under the following headings.  First, that he took the view on the evidence that was before him, that Cross was the main perpetrator of the injury.  Secondly, that Cross was involved in the third element, namely the the concoction of the story on the 2nd January, which he encouraged Lee to maintain when the matter was raised by management.  Thirdly, Lee was scared of Cross but not of the other two.

	So that you have those three elements for the distinction.  What the Tribunal had to make up their minds about was whether they believed Mr Greenwood when he said that those three elements activated his mind to make a distinction and to dismiss in Cross's case or whether they were not acceptable.  They may have tested it against what another employer might have done in the circumstances, one knows not, but they were there and the issue was, did they believe him?  

	They saw and heard Mr Greenwood and in paragraph 8 they say this:
"In the result the Tribunal were not inclined to accept that management investigation had gone far enough, if it led them to decide that Mr Cross was the ringleader in the horseplay incident.  The Tribunal felt that they had not been given the whole story about it and we were not prepared to treat what we had heard as sufficient to support the view taken by management about the applicant. . . . . . . . . . . . . .  We did not therefore accept the respondent's case that the applicant was reasonably dismissed for `misconduct', using that term to include both the horseplay and the fabrication.  Pover and Birchall were suspended;  why Cross was not similarly treated is not apparent from this part of the evidence."

The use of the words "reasonably dismissed" is perhaps unfortunate in that last phrase because that brings in Section 57(3).  But omitting that from our consideration for the moment, and without examining the wording of that paragraph in too great a detail, it seems to us that one can extract from that paragraph the findings that they did not believe, or accept, Mr Greenwood when he said that those three elements - and indeed the surrounding circumstances, because they investigated it all - were such as to warrant the distinction for dismissal of Cross.  They did not accept that evidence and that reasoning, and they therefore found, having seen and heard all the witnesses, that the principal reason was the Section 58 reason.

	We are grateful to Mr Grundy for the careful way in which he has analysed this Decision and in which he has criticised it.  It is right that the simple approach which we have indicated, was not necessarily the approach of the Tribunal, but reading between the lines and reading the Decision as a whole, it seems to us that the only conclusion that we can reach is that the Tribunal disbelieved Mr Greenwood and did not accept that he had valid reasons or that he relied on those valid reasons for the distinction that he took between these three men. Therefore, it followed from that - the next step - that the Tribunal were satisfied that the reason, and the true reason, was trade union activities.

	It follows therefore, in the circumstances, for those reasons that this Appeal must be dismissed.