Appeal No. EAT/928/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4 February 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MISS J W COLLERSON

	MR R JACKSON

R F GIDDINGS & CO LTD	APPELLANTS

MR D C WOOD	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR L G WILDING
	(PERSONNEL ADVISER)
Personnel Manager Services
Corporation Street
Midland Buildings
Chesterfield
Derby S41 7TP

For the Respondent	NO APPEARANCE BY OR
	ON BEHALF OF
	RESPONDENT

	MR JUSTICE WATERHOUSE:  This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal which sat at Southampton on 22 September 1993.  The decision of the Tribunal was that the Respondent to the appeal, that is the employee, was unfairly dismissed under the provisions of Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.  In the light of that decision, the Tribunal went on to make a substantial award to the Respondent, including a special award of £13,400.  

	The Appellants now seek to appeal against that decision on the basis that there were material errors of law on the part of the Tribunal.  The first error alleged is that the Tribunal applied the wrong burden of proof in dealing with the matter because they considered merely the balance of probability without clearly formulating the proposition that the burden of proof was upon the Plaintiff to establish that he had been dismissed because of trade union activities.  Without proof of that he could not claim for unfair dismissal, having not served the requisite qualifying period.  In support of this ground of appeal, Mr Wilding, who has presented the points on behalf of the Appellant very clearly, relies upon a majority decision of the Court of Appeal in the case of Smith v The Chairman and Other Councillors of Hayle Town Council [1978] I.R.L.R. 413.  The majority Judgments of Lord Justice Eveleigh and Sir David Cairns have been considered on a number of occasions by the Appeal Tribunal and by the Court of Appeal, notably in the case of Maund v Penwith District Council [1984] I.C.R.143.  

	We can find nothing in the reasoning of the Industrial Tribunal in the instant case that could arguably be regarded as an error of law in relation to the burden of proof.  The matter was decided on the balance of probability after consideration of the whole of the evidence by the Industrial Tribunal and we cannot see that there was any error as to where the burden of proof lay or as to the standard of proof that was required in this case.

	The second point that it is convenient to deal with here is the suggestion by Mr Wilding that the Tribunal approached their decision in an incorrect way by posing the relevant questions for consideration in the wrong order.  It is submitted that it was the duty of the Tribunal, first of all, to ask whether or not the employers knew that the employee had engaged in trade union activities because that was an essential precondition to any finding by the Tribunal that the employee had been dismissed for trade union activities.  Without that knowledge it is obvious that trade union activities could not have been asserted to be the reason for the dismissal.  It is submitted further that that was an essential issue, to be decided first, because, without a finding in favour of the employee on that point, the Tribunal had no jurisdction to hear his complaint:  only if the question of knowledge had been decided in favour of the employee could the Tribunal properly go on to consider what was the reason for the dismissal on the whole of the evidence.

	In support of that Mr Wilding has found a passage in an early Judgment of this Appeal Tribunal delivered by Mr Justice Phillips in H Goodwin Ltd. v Fitzmaurice and others, [1977] I.R.L.R.393.  It has to be stressed that that was a Judgment given at a time when it was necessary for the Employment Appeal Tribunal to give general directions, intended to be helpful to industrial tribunals, in relation to questions of practice and procedure and, undoubtedly, the guidance that was given at that stage went beyond strict questions of law.  What Mr Justice Phillips said, at paragraph 5 of the Judgment on page 394, was this:

	"The way in which the Industrial Tribunal approached the matter was first of all to consider the question of redundancy and whether it had been established that the reason for the dismissals was redundancy.  They found that it had not been so established, and they then went on to consider the next question, as to whether it had been established that the reason for the dismissals was trade union activities; and they found that it was.  On any view, it seems to us that that is to reverse the proper sequence of things.  On any view, the first question must have been whether or not it had been established that the reason for the dismissals was trade union activities, for only if it was, was there jurisdiction to hear the complaints, because only if it was, did the employee have a right not to be unfairly dismissed.  We think that that way of proceeding has vitiated the proceedings before the Industrial Tribunal, because it has, or there is a real possibility that it has, led the Industrial Tribunal to approach the matter on the footing:  was the reason redundancy?  If it was not, it was probably trade union activities.  In any event, in the circumstances of this case, that was something of a non sequitur, but it was on any view of it the wrong way to approach the question."

	At first sight that would appear to support the proposition put forward by Mr Wilding in a persuasive way.  However, at paragraph 7, Mr Justice Phillips went on to say:

	"That being said, we should deprecate it, if Industrial Tribunals fell into the opposite error to that fallen into by the Industrial Tribunal in the present case.  Usually, at all events, it will be undesirable, where an employee employed for less than 26 weeks sought to show that the case falls within para. 11 and has started to put forward that case, to be allowed a submission of no case to answer.  There may be exceptional instances where that is justifiable, but usually it will be better for the Industrial Tribunal, even if they think that the employee's case under para. 11 is not strong, to go on and hear what the employer has to say as to what the real reason for the dismissal - because it may well be, when that reason is examined, that it will either be seen to be a true reason, or, on the contrary, not to be a true reason and thus perhaps to bolster up what at the outset seemed to be a weak case under para.11."

	That later paragraph is not easy to reconcile as a matter of practice with what Mr Justice  Phillips said in the earlier paragraph 5.  It is quite clear, however, that the Appeal Tribunal was dealing with the facts of the particular case before it and it may well be that the order in which the questions were approached did vitiate the conclusions in that particular case.  The question whether or not a reason given by an employer for dismissal was a genuine or a bogus reason has been considered in a number of cases since then, both in the Appeal Tribunal and in the Court of Appeal and it has not been thought necessary to repeat or endorse what Mr Justice Phillips said in paragraph 5.  Indeed, the general tenor of the decided cases is that it is usually necessary for the Industrial Tribunal to consider in detail whether or not the stated reason was a genuine or bogus reason in order to come to a fair and proper conclusion as to whether or not the case asserted by the employee, namely that he was dismissed for trade union activities, can be sustained.  Thus, it is the practice envisaged in paragraph 7 that is followed rather than the narrower practice envisaged in paragraph 5.  That certainly conforms in our judgment with what was said by the Court of Appeal in Maund v Penwith District Council (supra).

	It might have been better in this case if, at the end of consideration of the evidence, the Tribunal had stated the questions in the order envisaged by Mr Justice Phillips in paragraph 5 of his Judgment in the H Goodwin Ltd case.  What is important, however, is that in the instant case it is impossible for an argument to succeed on the footing that the reasoning of the Industrial Tribunal was distorted by its approach to the relevant questions.  

	On the facts that the Industrial Tribunal had to consider here, there was no non sequitur.  Once it became apparent that the reason given by the employers, namely redundancy, was entirely bogus, that was a strong pointer to the other reason being the genuine reason.  The timing of the dismissal and the other material before the Tribunal were such that it could not sensibly be argued that their approach vitiated their reasoning or that there was a real possibility that the Industrial Tribunal had been led to decide the matter on a wrong basis.

	Despite its flaws, the second argument put forward by Mr Wilding is his strongest.  In our judgment, it cannot succeed and could not succeed on a full hearing before the Appeal Tribunal.

	The next proposed ground of appeal is that the reasoning of the Industrial Tribunal was perverse because three witnesses gave positive evidence on behalf of the employers that the reason for dismissal was redundancy and there was no adequate evidence to justify an inference by the Tribunal that trade union activities on the part of the employee known to the Appellants was a reason for his dismissal.  In particular, it is submitted that there was no positive evidence that any senior representative of the employers knew, at any material time before the decision to dismiss was made, that the employee had been engaging in relevant union activities.  All that we can say to that is that we have read and re-read the statement of reasons in this case and we consider the argument based on alleged perverseness to be quite unsustainable.  It is essentially an argument based on fact rather than law.  It is only when true perverseness can be established that a question of law arises.  It is not simply a matter of the weight of evidence and, in our judgment, that argument does not raise an identifiable point of law on the material before us.

	Finally, Mr Wilding would wish to add a ground of appeal based on a submission that  the Industrial Tribunal made an error of law in their interpretation of redundancy within the framework of the Act of 1978.  In other words, it is suggested that they applied the wrong tests because they concluded that they were not satisfied that there was any shortage of work, whereas they should have applied the proper statutory formula in order to reach a conclusion about the matter.

	That proposed additional ground seems to us to be based on a misunderstanding of the nature of the argument below.  The Industrial Tribunal were not concerned, at the stage that they had reached in their deliberations, with any question as to whether or not the employers had established that there was a redundancy within the meaning of the Act.  What the Tribunal were concerned to decide was whether the employers thought and believed that the genuine reason for the dismissal was redundancy as they understood redundancy.  In the context of that question, the conclusion of the Tribunal that there was no evidence to satisfy them that there was a shortage of work arising from the small hole in a floor that had been the subject matter of complaint on safety grounds was an entirely reasonable conclusion;  and it does not suggest that there was any error of law on the part of the Tribunal below.  On the contrary, it does indicate that they were approaching the matter in the correct way.  They were not asking:  Has the employer established under Section 67 that the principle reason was a true redundancy within the meaning of the Act.  They were asking the much broader question:  What was the genuine reason as the employers understood it for the dismissal?  Their finding was that redundancy was a bogus reason and that the true reason was the alleged trade union activities of the employee.

	We can see no basis, therefore, on which it would be proper for us to allow this appeal to go to a full hearing.  The appeal is therefore dismissed.