Appeal No. 659/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 November 1992
	Judgment delivered on 4 December 1992

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR T S BATHO

	MR R JACKSON

BRITISH COAL CORPORATION	APPELLANTS

MR N PEARCE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MRS G KEENE
	        (of Counsel)
Messrs Nabarro Nathanson
Solicitors
The Lodge
South Parade
Doncaster
South Yorkshire
DN1 2DQ

For the Respondent	MR R ALLFREY
	        (of Counsel)
Messrs Raleys
Solicitors
40 Victoria Road
Barnsley
S70 2BU

	MR JUSTICE TUCKER:   This is an employers' appeal from the decision of the Industrial Tribunal sitting at Leeds on the 2nd September 1991 whereby it was decided that the Appellants' action against the Respondent was as an individual for the purpose of preventing or deterring him from taking part in the activities of an independent Trade Union at an appropriate time contrary to Section 23(1)(b) of the Employment Protection (Consolidation) Act 1978.  The grounds of appeal are that the Tribunal erred in law in a number of respects set out in considerable detail in the Notice of Appeal.

	The Respondent is now 32, and he had been employed since just before his sixteenth birthday at Denby Grange Colliery in the North Yorkshire area.  He is a qualified electrician.  He has been a member of NUM since the start of his employment and in 1989 was elected a branch delegate.  He was a good worker.  As a branch delegate he could be difficult to deal with.

	Unfortunately, the colliery at Denby Grange had to close but a new mine was due to open at North Selby.  The Employee Relations Officer in the Selby Group was Mr. John Coopey.  He was given instructions to recruit a harmonious work-force to work at North Selby.  In due course he interviewed the Respondent.  His name rang a bell in connection with his branch activities in NUM.  The Tribunal found that the Respondent had told Coopey at the interview that his union activities were not a priority with him in wishing to transfer to the new pit.  Nevertheless, Coopey decided to take soundings about the Respondent, and he spoke to three managers at Denby Grange.  They left him in no doubt that the Respondent was viewed as a troublemaker.  Coopey therefore thought the interests of North Selby would not be best served by the Respondent's transfer into it.  There was no doubt in the minds of the Tribunal that the sum total of the views expressed by the three managers referred to the Respondent's activities while acting on behalf of NUM.

	The following day Coopey discussed the Respondent with an official of NUM.

	As a result of this and the previous conversations, Coopey formed the view that the Respondent had an attitude problem which led Coopey to believe that the Respondent would not fit in.  Coopey said he did not want the unsettling of industrial relations over attitude, but the Respondent's union activities did not affect him.  What he meant by this was, as the Tribunal found, that he was not influenced in his decision simply by the fact that the Respondent had been engaging in activities as a branch delegate - that of itself, and without more, would not have been a bar.  What concerned Coopey, and what caused him not to transfer the Respondent, was the fact that while acting in his capacity as a branch delegate, the Respondent had been a troublemaker, and that he might disrupt industrial relations at a mine in which the Appellants had invested substantial sums of money.

	The Tribunal accordingly came to the conclusion that Coopey's failure to offer the Respondent a transfer to North Selby was on account of his trades union activities and that his purpose was to prevent him from carrying on with such activities there.  They said this at paragraph 24 of their Reasons:

"We have no doubt, however, that it was the expression of those views, and the manner of such expression, together with his refusal as a delegate of the union, to negotiate on such matters as pit incentive schemes and week end sheering which formed the principal reason for his failure to obtain a transfer.  We find, therefore, that Mr Coopey's purpose in taking "action" to deprive Mr. Pearce of the transfer was to prevent him from expressing such views and from being so intractable at North Selby should he be elected to hold union office there."

	"Action" in Section 23 is defined in Section 153(1) of the Act as including an omission, and it was conceded before the Tribunal that the failure by the Appellants to offer the Respondent a transfer was action of the Respondent as an individual.  Section 25 of the Act therefore requires the Appellants to show the purpose for which action was taken against the complainant.

	What is the meaning of this word "purpose"?

	The Appellants submit that it means "primary or principle purpose" as distinct from the means of achieving it.   They submit that the Tribunal failed to address itself to this question, and that had it done so it would have been bound to conclude that Coopey's purpose was to achieve a harmonious workforce and that the Respondent was rejected because he would be a disruptive influence.   Therefore insofar as the decision to exclude him from North Selby did prevent him from participating in union activities, that was no more than a means to the main purpose or a collateral result caused in achieving it.

	It was not what the Tribunal found.   They set out their conclusions on this matter at paragraph 23 of their Reasons.

"The rejection of the applicant by Mr Coopey was not brought about, therefore, [solely] because of his affiliation to the NUM but because of the manner in which he dealt with management whilst engaged in his trade union activities.   We find that Mr Coopey had decided that the applicant must be prevented from doing at North Selby what management considered he had done in an inflexible and hotheaded manner at Denby Grange, namely acting on behalf of the NUM as an elected delegate in meetings with the management.   We are therefore unable to escape the conclusion that Mr Coopey's failure to offer the applicant a transfer to North Selby was on account of his trade union activities and that his purpose was to prevent him from carrying on with such activities there."

and they amplified this in the last two sentences of paragraph 24:

"We have no doubt, however, that it was the expression of those views, and the manner of such expression, together with his refusal, as a delegate of the union, to negotiate on such matters as pit incentive schemes and week end sheering which formed the principal reason for his failure to obtain a transfer.   We find, therefore, that Mr Coopey's purpose in taking "action" to deprive Mr Pearce of the transfer was to prevent him from expressing such views and from being so intractable at North Selby should he be elected to hold union office there."

	There was in our opinion clear evidence on which the Tribunal could reach that view, as already referred to.   It is plain that the Tribunal did not accept Coopey's evidence - they rejected it, and they substituted their own view as to what was the activating or motivating factor in his decision.   The Tribunal were entitled to take that course, and in our opinion they cannot properly be criticised for having done so.

	That is not the end of the matter however, because the Appellants' alternative submission is that it is open to an employer to argue that the reason for his action is the employee's personal views, even if they are expressed in the course of union activity.   In this connection we were referred to the decision of the Employment Appeal Tribunal in McCarthy v Somerset County Council, of which we have a transcript.   We are bound to say that we do not derive assistance from the case, and Counsel for the Respondent goes so far as to suggest that it was wrongly decided.  Without going that far, it suffices to observe that we are not bound by that decision.

	It does not seem to us that this alternative submission can succeed.   The evidence which the Tribunal accepted showed that the Respondent's views and attitude were exhibited in his capacity as a Trades Union delegate.   They observe at paragraph 22 that

"there was not a shred of evidence before us that the applicant had exhibited the characteristics which had given him a bad name in any context other than the carrying out by him of his activities as an official of the branch at Denby Grange Colliery."

and they had already found that the views expressed by the three managers referred to the Respondent's activities while acting on behalf of the NUM.

	Counsel for the Respondent submits that what was happening here was that the Appellants, through Coopey, were taking upon themselves the function of deciding which Trades Union representatives they would negotiate with, and that it is not open to them to do so.   We think there is force in this submission.   Coopey was not objecting to the Respondent as a man, but as a Trades Union delegate, actual or potential.

	In our opinion the Tribunal was correct in concluding as they did, and this appeal will be dismissed.