Appeal No.	 EAT/37/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MRS E HART
MR R H PHIPPS

MR J E HUGHES	APPELLANT

MID-SUSSEX NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS I OMAMBALA
(Of Counsel)
Director of Legal Services
UNISON
1 Mabledon Place
London
WC1H  9AJ	
For the Respondents	MR H R BALLANTYNE
(Personnel Consultant)

	JUDGE CLARK:   This is an appeal by the Applicant before the Brighton Industrial Tribunal, sitting on 12 July, 30 September and 1 October 1996, Mr Hughes, against that Tribunal’s decision to dismiss his complaint brought against the Respondent employer under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act).  Extended Reasons for that decision are dated 12 November 1996.

The facts
	The Appellant has been continuously employed by the Respondent and its predecessors since 27 January 1967.  In 1994 he was employed as a Charge Nurse on the Villa Ward at the Princess Royal Hospital, Haywards Heath, with a responsibility for looking after psychiatric patients.  He was at all relevant times a member of the independent trade union UNISON.  In 1994 he was the UNISON Branch Secretary.  

	In late 1994 the Appellant and the union were concerned that patients with a history of physical and verbal aggression were due for placement in community based homes in Burgess Hill and Haywards Heath.  In his capacity as a Charge Nurse, and not in his union capacity as a lay-union official, the Appellant was invited to be a member of a sub-committee chaired by the acting nurse manager, Mrs Guest, set up to assess patients for placement.

	On 14 September 1994 the Appellant wrote to Mrs Guest on UNISON notepaper as the UNISON Sector 2 Secretary, 09016 Health Care Branch, stating that he had met with her and the Social Work department to agree a revised tool which would reflect the mental health and social needs of the current group being considered for resettlement in the community.  He added that he understood that the revised assessments had been published and used, but he had not seen the final product.  He asked for a copy of the agreed tool for assessment, together with a breakdown of the assessments so far completed.  On her return from leave, Mrs Guest instructed her secretary to provide the Appellant with a copy of the assessments and these were sent to him on 22 October 1994.  They were not marked “Confidential”.

	On 25 October 1994 the Appellant issued a press release on UNISON headed paper.  The headline read “Great Risk of Violence to the Public from Patients to be Discharged”.  In the Extended Reasons the Tribunal say this: 
“3.   The Press Release stated that the Management of the Mid Sussex Trust, the Mid Downs District Health Authority and the Sussex Oak Leaf Housing Association, had been trying to hide the real facts from the public at large.  The Press Release continued: 
“The statistics show that out of the 11 patients projected for placement in houses in Burgess Hill, 9 had ratings which placed them in a category where they are likely to assault others.  Only 2 of the projected placements had no history of assault on others.
By comparison, only 6 out of the 15 patients projected for placement in Haywards Heath had a history of aggression to others.  Overall, this is a much reduced figure but remains unacceptably high”.”

	The Respondent took exception to that press release and on 1 November 1994 the Appellant was informed that divulging that information into the public domain contravened basic confidentiality and that all staff were bound by their contract of employment and the Professional Code of Nursing, not to divulge private information concerning patients.  He was told that a disciplinary hearing would be held.  On 3 November 1994 he was suspended on full pay pending a separate investigation into how another copy of the assessments had arrived in the hands of another union official, Mr Henry.

	On 9 November 1994 an investigatory hearing was held and the matter was investigated by Mr Robinson, the General Manager, and Mrs McCall, Director of Personnel.

	The Appellant’s suspension was lifted on 21 November 1994 and a disciplinary hearing was held on 2 December by Mr C Williams, Finance Director and Miss K Halliwell, Director of Nursing.  The Tribunal say this in their Extended Reasons:
“4.	The Management case was put by Mr Robinson, assisted by Mrs McCall, and the Appellant was assisted by Mrs T Ashley, a Senior Regional Officer of UNISON.  They accepted that the Appellant had quite properly received the information but they were concerned to hear it was not marked Confidential.  They accepted that the Applicant’s statements were made in the public interest, but in making his statement about the Burgess Hill patients, he had been so explicit that he might have well as named them.  The quoting of specific numbers increased the chances of identifying individuals and was therefore not in the patients’ interests.  The Panel took the view that the Applicant had acted unwisely and had misused information in the way that had been outlined.”
5.	Given the nature of the implementation of the Mental Health strategy, the Panel did not wish to inhibit proper Trade Union response to the process and therefore were issuing a first Written Warning which would apply for a period of three months.”...

Thereafter the Appellant exercised his right of internal appeal.  An appeal hearing took place on 16 June 1995.  After consideration of the evidence, the appeal panel concluded that disciplinary action was appropriate and they dismissed the appeal on the grounds:
“1.	 that the interests of patients due to transfer to the proposed community-based units were jeopardised both individually and collectively
2.	  that the patient information given to him in good faith was then used by him to create a Press Release without permission and that this was a breach of confidentiality.”

The complaint 
	By an Originating Application presented on 22 February 1995, the Appellant complained of action short of dismissal/victimisation for trade union duties.  He alleged that as a result of the Press Release the Trust carried out an extensive investigation, suspended him from his job as a nurse and subsequently disciplined him.  He argued that the Press Release was issued by him in his capacity as a trade union official and he maintained that he had been victimised by the Respondent because of his trade union activities.  

	By their Notice of Appearance the Respondent resisted the complaint contending that the Appellant received a first written warning because one of his press releases was considered by the Respondent as constituting a misuse of patient information.  They averred that the Respondent had never before attempted to stop or take action in relation to press and media statements made on behalf of the union, because in the past patient information was not disclosed.  It was also contended that Mr Hughes had not suffered any detriment.

The Industrial Tribunal Decision
	The Tribunal found that difficulties had arisen in the case because when trade union officials had duties within the National Health Service Trust, their duties to the Trust and their duties to the trade union cannot be kept in watertight compartments.  The Appellant was not, they found, criticised for obtaining the assessments other than in a legitimate manner, but in using them he magnified the risk of assault on patients by the public.  

	They expressed their conclusions in the case in paragraphs 8 and 9 of their reasons in this way:
“8.	The Applicant was a Charge Nurse with considerable experience of dealing with psychiatric patients.  The information which he received as a Trade Union Official was not new to him and he had, as a Charge Nurse, been involved in giving guidance on the method of making assessments.  So quite clearly, he would have appreciated that that information should not be issued in a way that would allow confidential information about patients to be supplied to the general public.  The Applicant misused that information by drafting his Press Release in a way that would allow the patients to be identified and the public alarmed.
9.	The Tribunal finds that the disciplinary action taken against the Applicant was because he had misused information supplied to him as a Trade Union Official, when he had had previous dealings with those assessments as a Charge Nurse and he had a duty not to allow the misuse of confidential patient information.  The Tribunal dismisses the Applicant’s claim that he has been victimised because of his Trade Union Activities contrary to Section 146 of the Trade Union Labour Relations (Consolidation) Act 1992.”

The Legislation
	Section 146 provides: 
“(1)  An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of —
........
(b)	preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, ...”

The expression “an appropriate time” is defined in sub-section (2).  

In Section 148(1):
“(1)  On a complaint under section 146 it shall be for the employer to show the purpose for which action was taken against the complainant.”

For completeness, Section 152 provides:
“(1)  For purposes of [Part X of the Employment Rights Act 1996] (unfair dismissal) 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—
........
(b)	had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, ...”

Again, “an appropriate time” is defined in sub-section 2 of Section 152.

The Appeal
	For the Appellants, Ms Omambala submits that in reaching its decision the Tribunal failed to ask itself and answer three critical questions raised by Section 146(1)(b) of the 1992 Act.  They are:
(1)	Did the Respondent take action short of dismissal (“the action”) against the Appellant as 	an individual?  If so,
(2)	Was the Appellant taking part in the activities of an independent trade union at an 	appropriate time (“the activities”)?  If so,
(3)	Has the Respondent shown that its purpose in taking the action was not to prevent or deter 	him for taking part in the activities, or to penalise him for doing so?

	In a letter to the Employment Appeal Tribunal dated 11 February 1997 the Industrial Tribunal Chairman accept that the Tribunal did not make express findings on those questions.  Therefore the issue for us in this appeal is whether it is possible to discern from the Tribunal’s reasons implicit findings on those three questions, which we accept as a matter of law must be posed and answered by the Industrial Tribunal?

	As to the first question, we accept Mr Ballantyne’s submission that in finding in paragraph 9 of the reasons that disciplinary action was taken against the Appellant, consisting of disciplinary proceedings leading to a first written warning, it is implicit in the Tribunal’s findings that the Appellant succeeded in passing this first hurdle.

	It is the second question which raises a difficulty.  We have considered the judgment of the Court of Appeal in Bass Taverns Ltd v Burgess [1995] IRLR 596.  That was a complaint of dismissal by reason of trade union activities under Section 152 of the 1992 Act.  However, the Court’s observations as to the meaning of trade union activities apply equally to complaints under Section 146.  In that case the Applicant gave a presentation to new recruits to the Respondent company on behalf of the trade union to which he belonged and in which he was an elected shop steward.  He had the company’s permission to do so.  However, in the course of his presentation he went, in his own words, “over the top” in criticising the company.  The company took exception to these remarks and demoted him.  He left the employment claiming that he had been constructively dismissed and that the reason for his dismissal was his trade union activities.

	An Industrial Tribunal dismissed his claim, holding that the reason for dismissal related to his conduct in abusing the privilege given to him by the Respondent to use the meeting as a union recruitment forum.

	On appeal, the Employment Appeal Tribunal allowed the Applicant’s appeal and substituted a finding that dismissal was on the grounds of trade union activities.  An appeal by the employer to the Court of Appeal was dismissed.  The Court of Appeal held that because the content of the Applicant’s speech fell outside the implied scope of the employer’s consent to his addressing the new recruits, it could not be said that what he did fell outside the scope of trade union activities within the meaning of Section 152.  However, at paragraph 14 Lord Justice Pill said this:
“I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term ‘trade union activities’ in s.58 of the Act.”

	Applying that approach in this case, it is clear from Mr Ballantyne’s submission to us that his case below was that he accepted that issuing the Press Release fell within the ambit of trade union activities; but what took it outside that expression was the misuse of confidential information.  That, it seems to us, was the critical factual question for the Industrial Tribunal.  It was not, on the face of its reasons, answered.  It is not enough for the Tribunal to find simply that the action was taken against the Appellant because he had misused information supplied to him as a trade union official.  The question is, does that fact take what the Appellant did outside the scope of trade union activities, within the meaning of the Act?  In failing to answer that question, we are satisfied that the Industrial Tribunal fell into error.

	Further, there is no indication that if the question of trade union activities were to be answered in favour of the Appellant, that the Tribunal went on to consider what was the Respondent’s purpose in taking the action.  Was it to penalise him for taking part in the activities, or was it to prevent the misuse of confidential information?  Again, by not addressing that question it seems to us that the Tribunal fell into error.

	In these circumstances we have reached the conclusion that this decision cannot stand.  The appeal is allowed.  The matter will be remitted to a fresh Industrial Tribunal for rehearing.