Appeal No. EAT/118/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 February 1995
	Judgment delivered 28 March 1995

	Before

	THE HONOURABLE MRS JUSTICE SMITH

	Ms S R CORBY

	MR L D COWAN

MR D DUNDON	APPELLANT

GPT LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J BENSON
	(Of Counsel)
	John Pickering & Partners
	19 Castle Street
	Liverpool
	L2  4JX	

For the Respondents	MR T RIGBY
	(Of Counsel)
	GPT Ltd
	Edge Lane
	Liverpool
	L7  9NW

	MRS JUSTICE SMITH:  This is an appeal by Mr David Dundon against the decision of an Industrial Tribunal sitting at Liverpool in September 1992.  The Tribunal found that the appellant had been unfairly dismissed from his employment with the respondents in that he had been unfairly selected for redundancy but that he had contributed to his dismissal to the extent of 75%.  They found that he had not been selected for redundancy on account of his trade union activities.  He appeals against that finding and the finding of contribution.  The respondents cross appeal, contending that the Tribunal erred in law in holding that the appellant's dismissal was unfair.  

	The respondents are a very large organisation, part of the Plessey Group.  They design, market and sell telecommunications equipment.  The appellant was employed by them as an accounts clerk at their factory at Edge Lane Liverpool.   He had been employed by them since 1972.  He was an active trade unionist and for some years prior to his dismissal in March 1992, he had been the senior representative of the GMB/Apex partnership, that is the white collar section of the General and Municipal and Boilermakers' Union.  The Apex section had some 300 members at the Edge Lane factory.  

	Until 1984, many trade union representatives at Edge lane spent all their time on trade union activities.  In 1984, the respondents made it plain that, while representatives would be allowed reasonable time off for trade union duties, they would be required to hold down a valid job of work for the company.  

	While the appellant was a local representative, he was allowed about 10% of his time for trade union duties.  When he became the senior representative in 1987, the respondents recognised that he would need more time off but they insisted that he should do a job of work as well.   Immediately, he was given a less demanding job, that of Senior Payments Clerk, normally a Grade 7 position, but was allowed to keep his personal Grade 8.  Difficulties arose and by 1989, the company considered that the appellant was spending too much time on trade union duties.  Meetings were held at which the company sought to establish a modus vivendi acceptable to both parties.  By memorandum dated 30th January 1990, Mr Mackintosh the Employee Relations Manager, wrote to the appellant setting out the terms of the most recent proposal.  It was that the company would expect the appellant to work in his department during the mornings and would usually allow him to have the afternoons for trade union duties.  Management would operate this `half and half' arrangement flexibly.  The Industrial Tribunal found that the appellant agreed to this scheme but that he made no attempt to make it work.  Within days, he had been called out by a member during the morning and thereafter the arrangement was a dead letter.  He was soon spending almost all his time on trade union duties.  

	In October 1990, the respondents made another effort to regularise the appellant's arrangements.   He was appointed as a fixed assets officer, working under a Mr Marley.  This was a further demotion to work which could be done independently of other employees.  It was designed to allow him greater flexibility without disrupting the work of the department.  He kept his personal Grade 8.  His duties were defined by job content rather than by hours of work.  

	The Tribunal found that soon after this change of work, the appellant reverted to his old practices of spending almost all his time on trade union duties.  Other men had to do his work for him.  Sometimes he would tell Mr Marley that he was leaving the department; sometimes he would leave a note; sometimes he would just go.  He received an endless stream of telephone calls when in the department so that even when he was there he was not doing company work.  Mr Marley was not ill-disposed towards him.  He simply accepted the frequent absences from the department.  He did not speak to the appellant about this or take any disciplinary action.   The Tribunal accepted that during 1991, the appellant spent less than 20% of his time on company work.  The problems within the department were made worse by the appellant's bad time-keeping.  He was often late for work.  

	In 1991, the respondents faced the need to reduce their workforce.  The Tribunal found that there was a genuine need for redundancies.  The respondents consulted properly with the unions and the workforce.  They devised a method of selection for redundancy which the tribunal held was a fair method if properly carried out.  The workforce was divided into groups.  In the appellant's group there were 47 employees of which 9 were to be selected for redundancy.   The members of the group were assessed by two managers on grades of 1 (very poor) to 6 (exceptionally good) against a set of six criteria.   The criteria were quality of work, quantity of work, cooperation, attendance/timekeeping, specialist knowledge and experience and length of service.  A more senior manager was to check the assessments and weight some criteria more heavily than others.  Thus, quality and quantity of work each carried a maximum of 30 points, whereas length of service carried only a maximum of 6.   
	The guidance given to managers making assessments was that allowance was to be made for employees who were absent from work due to trade union duties.  Such persons should be assessed like everyone else but they should be neither privileged nor disadvantaged by their trade union activities.   

	The appellant was assessed by Mr Marley and Mr Calderbank.  He did badly, particularly under the heading of `quantity of work' for which he was assessed as `very poor'.  Under that section the written comment was:

	"Dave's quantity of work is unacceptable, due to time spent on unofficial union duties, both in and out of the office, and his regular appalling timekeeping significantly reducing what remained of his working day.  Otherwise, his work on fixed assets work is undertaken at a satisfactory pace".  

He was given a total of 45 points after weighting and was third from the bottom of the group.  He was in line for selection.  

	The appellant was entitled to appeal against his selection and the assessment which underlay it.  Mr Horgan, the Employee Development Manager held the appeal on 18th February 1992.  The record of that meeting shows that he was concerned that the appellant's assessments might have been distorted as the result of his trade union activities.  He asked Mr Marley and Mr Calderbank to reconsider their assessments so as to ensure that they were fair and made allowance for `a reasonable amount of involvement in trade union activities.'  They reported back, confirming their assessments and the appeal was dismissed.  

	In his letter dismissing the appeal Mr Horgan said:
	"In completing their assessment of Mr Dundon, the assessors were asked to make due allowance for reasonable time off in connection with trade union activities.  They have been guided in their interpretation of reasonableness in this respect by Mr Mackintosh's letter (of 30th January 1990). 
	
	Therefore if Mr Dundon's method of operating was such that the time he was involved in trade union activities considerably exceeded the bounds of what would be considered reasonable, that he would not keep management informed of when he was performing union duties (at or away from his place of work), and that there was little continuity in his pattern of work for the company due to the relative priority given to his trade union role, then it would be reasonable for the assessors to take these matters into account when making their assessment.  It appears  ... that this was indeed Mr Dundon's method of operating."

	The Tribunal found that the appellant had been dismissed by reason of redundancy.  The redundancy was genuine and the respondents were not activated by malice in selecting him.  They said:

	"They did not select him because he was a union activist, though his union activities were relevant to his selection as we shall see."

That short passage, as it seems to us and as counsel accept, is the only passage in which the Tribunal consider the appellant's claim that he had been dismissed or selected for redundancy by reason of his trade union activities and that his dismissal was therefore automatically unfair by virtue of sections 58 and 59 of the Employment Protection (Consolidation) Act 1978, now re-enacted at sections 152 and 153 of the Trade Union and Labour Relations (Consolidation) Act 1992.  They dismiss that suggestion and go on to consider whether the selection was unfair under the provisions of Section 57(3) of the 1978 Act.  

	Having found that the procedure for selection was fair if properly applied, the Tribunal found that it had not been properly applied to the appellant.  They  noted the basis on which trade union representatives were to be assessed.  They said that the respondents had directed that trade union officials were to be assessed on the basis of the time actually spent on the job, their hours on trade union duties being discounted. In the appellant's case, the employer was not entitled to base the assessment on the time the appellant was supposed to spend on company work (as set out in Mr Mackintosh's letter) when everyone agreed that he had never in fact spent that amount of time on company work.  The truth was that for many months before the assessment, the appellant had been spending less than 20% of his time on company work and his manager had not demurred.  They continued:

	"The arrangement (in the letter of 30th January) became a dead letter.  The respondents were not reasonably entitled to resurrect it for the purposes of his assessment for redundancy.  The feature of the applicant's working life that made the respondents select him was that he did not spend nearly enough time working for them, that he devoted far too much time to trade union duties (though the respondents were not hostile to his trade union duties as such).  But they had helped to allow the position wherein he was spending too much time on union matters to develop from the situation stipulated (in January 1990).  They should not have measured him against the standard implied in that letter."  
They found the selection for redundancy unfair for that reason.  They then went on to consider the extent to which he had contributed to his selection by his own conduct.  They considered that the appellant regarded himself primarily as a trade union official, who fitted his duties of employment round his union work when the latter allowed.  He made no effort to curtail his union duties by asking members to wait until after work or until the afternoon.   He had made no serious effort to make the January 1990 arrangement work.  He should have done far more to comply with the employers' reasonable requirement that he should do a substantial job of work for them.  The Tribunal were also mindful of the appellant's poor record of timekeeping.  They assessed contribution at 75%.  

	We consider first the appellant's contention that the Tribunal erred in law in dismissing his claim that he had been unfairly selected for redundancy by reason of his trade union activities and that his dismissal should have been treated as automatically unfair under section 59 of the 1978 Act, now section 153 of the 1992 Act.  Section 59 provides:
	"Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown-

		(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer; and

		(b) that the reason (or if more than one the principal reason) why he was selected for dismissal was one of those specified in section 58(1)."  

Section 58(1) (now section 152 of the 1992 Act) provides:
	"For the purposes of Part V of this Act, 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)  .....
		(b)  had taken part or proposed to take part in the activities of an independent trade union at an appropriate time, or
		(c)........
 	     
	(2)  In subsection (1)(b) `an appropriate time' means-(a)  a time outside the employee's working hours, or
		(b)  a time within his working hours at which, in accordance with the arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of the trade union."

	Mr Benson, on behalf of the appellant submits that in rejecting this claim on the ground that they found no malice on the employers' part and no deliberate decision to dismiss him for his trade union activity, the Tribunal had construed section 59 far too narrowly.  Section 59 is not limited to cases of conscious and deliberate selection on the ground of trade union activity.  It should also cover, he submits, cases where the employers did in fact select the employee because of trade union activities even though they did not set out deliberately or maliciously to do so.   

	Mr Rigby for the employers submits that the tribunal were right to dismiss the claim under section 59 because sections 58 and 59 are designed to prevent deliberate victimisation.  He submits that it is not possible to breach section 59 (or section 58) unintentionally.  All the reported cases under sections 58 and 59 were cases where the selection was a pretext for the removal of a trade union official.  Also, he submits that there was no evidence that the appellant's trade union activities undertaken at appropriate times were the reason for his selection.   

	It was the duty of this Tribunal to ask itself what was the reason or principal reason for the dismissal.  It concluded that the reason was redundancy.  Then they had to ask themselves whether section 59(a) applied.  There is no sign that they did so.  However, it clearly did; the circumstances applied equally to other employees besides this appellant and some were not made redundant.  Then they should have asked themselves whether the reason Mr Dundon was selected was the reason set out in section 58(1)(b), namely that he had taken part in trade union activities at an appropriate time.   

	We accept Mr Benson's submission that the Tribunal erred in holding that the case did not come within sections 58 and 59 because the employer did not deliberately or maliciously select the appellant on the ground of trade union activity.  In understanding the word `reason', we derived help from a passage from the judgement of Cairns LJ in Abernethy v. Mott, Hay and Anderson [1974] IRLR 213.  At page 215, paragraph 13, he said: 

	"A reason for dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee."    

	The Tribunal in this case found as a fact that the feature of the appellant's working life that made the employers select him was that he was spending far too much time on trade union duties. That is the same thing as saying that the reason they selected him was that he was spending too much time on trade union duties.  In other words, the set of facts or beliefs which caused them to select him was that he was spending too much time on trade union duties.   Yet the Tribunal seem not to have appreciated that they were well on the way to a finding that the selection fell within section 58(1)(b).  It remained only for them to consider whether the reason for selection was that the appellant spent far too much time on trade union duties at an appropriate time, that is at times when it was permissible for him to do so.   That may sound contradictory in itself, which may explain the Tribunal's failure to tackle the point.  However, bearing in mind that permission may be express or implied, we think the Tribunal ought to have asked themselves whether the reason for selection was that the appellant spent too much time on trade union duties at times when he had been tacitly permitted to do so.     
	Unfortunately, the tribunal have not considered this last question.  They stopped short of considering whether the trade union activities had been carried out at an appropriate time because they, wrongly in our view, considered that the case could not fall within sections 58 and 59 if the employers had not been motivated by malice or a deliberate desire to be rid of an activist.  

	We are satisfied that the Industrial tribunal have erred in their consideration of the whether the reason for selection fell within sections 58 and 59.  We have considered what we ought to do in the circumstances.  We have asked ourselves whether the necessary findings of fact have been made for us to reach our own conclusion as to whether the reason for selecting the appellant was because he had taken part in trade union activities at an appropriate time.  Counsel agree that the necessary findings of fact have been made and we have come to the conclusion that we may proceed to a conclusion.     

	In paragraph 7(b) of the decision, the Tribunal find that `the respondents, although they thought that he was spending too much time off the job, did not demur'.  Later they say that his departmental supervisor in effect allowed him to spend more than 80% of his time on union duties.  Later, they say that the employers had helped to allow the position to develop whereby he was spending too much time on union duties.  We consider that those findings of fact show conclusively that if the tribunal had asked themselves the right question they would have inevitably concluded that the reason this appellant was selected for redundancy was because he had taken part in trade union activities at times at which in accordance with consent given (albeit tacitly and reluctantly) by his employer, it was permissible for him to do so.           

	Thus we allow the appeal and substitute for the finding that the dismissal was unfair under section 57(3) of the 1978 Act a finding that it was unfair under section 59.  

	We turn next to consider the Tribunal's finding that the appellant contributed to his own dismissal by his own conduct to the extent of 75%.  The first point taken by the appellant is that his representative did not realise that the Tribunal intended to consider contribution as part of the hearing on `liability' and his solicitor did not advance any arguments on that issue.  His solicitor thought that the chairman had reserved it to the remedies hearing.   The Chairman has stated that it is his invariable practice to consider contribution as part of the liability hearing.  He cannot imagine that he would have done otherwise in this case.  It is agreed on both sides that no arguments were advanced on this issue.   We need say no more on this topic because there is a measure of agreement as to how we should proceed.  Suffice it to say that whether or not the Chairman wishes to deal with contribution at the liability hearing, he must make his wishes clear, hear argument if necessary and announce his decision so that the parties know where they stand.  

	In this case, the parties have now had the opportunity to address us on this issue.  Counsel are content for us to make the assessment on the basis of the findings of fact in the decision.  Counsel agree that if we were to find that the dismissal had been unfair under section 59, it would still be open to us to make a finding of contribution.  They also agree that the matter should be looked at afresh as the contribution might well be assessed differently (that is at a lower level) as the relative culpability of the parties' conduct might be seen in a different light in a case involving an automatically unfair decision.  We agree.  
	We remind ourselves that we must only take into account the appellant's blameworthy conduct.  Also we must consider its causative effect.  We must decide what it is just and equitable to do; that entails a consideration of the employer's conduct too.
  
	We think that the appellant was at fault for being often late for work.  We think he was to blame for not honouring his side of the agreements which he entered into in January and October 1990.   He was at fault in not even trying to comply with the employers' wishes.   We think all of those matters were causative of his dismissal.  In mitigation of his fault, we observe that the employer did not demur at his conduct for about a year.  His Union activities were at least partly for the benefit of the employer and there is no suggestion that he was not always engaged on bona fide union activities.    

	On the other hand, we think the employers' unfairness was very serious because after condoning the appellant's activities for a long time, they suddenly took them into account against him.  They did so at a time which was crucial in that he faced selection for redundancy and was in danger of losing his job. 

	My two colleagues have great experience in industry and in tribunal work.  We have unanimously reached the conclusion that the proper figure for the appellant's contribution to his own dismissal is 33%.   

	It remains only to mention the cross-appeal against the finding of unfairness under section 57(3).  In the light of our conclusion that this was in truth a section 59 case of unfairness, the cross appeal becomes academic.  However, for the sake of completeness, and in case the matter goes to another court, we will briefly state our reasons why we would dismiss the cross appeal.  

	Mr Rigby submitted that the conclusion that the appellant was unfairly selected for redundancy because the employer failed to apply their own guidelines to his assessment, was perverse.  He submitted that the only conclusion open to the Tribunal was that Mr Marley and Mr Calderbank had assessed the appellant's job performance against the amount of work he had agreed to carry out in October 1990.  That work would have taken him about 30% of the working week allowing 70% for trade union activity.  Such an assessment was fair and within the employers' own guidelines.  He had not been assessed originally by reference to the January 1990 letter (mornings for work and afternoons for the union).  That only crept in at the appeal stage and an unfair appeal will not render a dismissal unfair if the original selection was fair.   

	We do not accept these submissions.  It is true that the Tribunal based their finding of unfairness on the approach adopted by Mr Horgan to the appeal and in particular his instruction to the assessors to be guided by the January 1990 letter when considering what was a reasonable amount of time for the appellant to have had off for trade union duties.   In our view, the Tribunal were entitled to approach the case in that way.  Mr Horgan himself had reached the conclusion that the first assessment appeared to have been distorted by the appellant's trade union duties.   When one reads the comments accompanying the assessment as set out earlier in this judgment, it is clear that the assessors had penalised the appellant for his union duties.  One could not categorise as perverse the implied conclusion reached by the Tribunal that the first assessment was unfair, as Mr Horgan thought.  

	As we understand it, Mr Rigby does not seek to criticise the conclusion that Mr Horgan's instructions for the second assessment resulted in unfairness because instead of telling them to assess on the basis of the work the appellant actually did (in accordance with their own guidelines), he told them to assess him as against the work the appellant ought reasonably to have done and to be guided by an agreement which had been a dead letter from the start, nearly 2 years before.  We have no hesitation in saying that if the Tribunal were right to reach their decision under section 57(3) as opposed to section 59, it was a decision which they were entitled to reach on the evidence.  

	The appeal is allowed and the case must be remitted to the industrial tribunal for consideration of remedies.