Appeal No. EAT/652/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR K M HACK JP
MR R JACKSON

MR T MISTLIN	APPELLANT

HOUNSLOW LAW CENTRE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	

		MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether there is an arguable point of law raised by Mr Mistlin’s appeal against the unanimous reserved decision of an Industrial Tribunal, that his complaint of unfair dismissal should be dismissed.  He had brought that complaint against his former employers, the Hounslow Law Centre Ltd.  The Tribunal heard the matter over a period of eight days; reserved their decision as I have indicated, and gave an extensive judgment running to nineteen pages and eighty-seven paragraphs.  We shall be referring to the decision in a moment.

	The brief facts may be set out as follows: the complaint by the employee Mr Mistlin was that he had been dismissed in relation to his trade union activities and therefore the Tribunal had jurisdiction to hear and determine his complaint of unfair dismissal, which otherwise they would not have done, because he did not have the requisite two years of service.  He was employed by the Law Centre as a Welfare Rights Adviser on 16 December 1991.  His dismissal was effected as from 1 September 1993 which was the effective date of termination.  

	The background to the dismissal occurred in connection with the reduction of grant aid, on which the Law Centre substantially depended, from the London Borough of Hackney, and the way that the reduction in funding should be managed in relation to the staff who were employed to work there.  In the course of the management of that problem, an anonymous letter was sent on 19 July 1993.  On 17 August 1993 the Chairman of the Management Committee, Mr Patrick, wrote to Mr Mistlin, the Appellant, informing him that the Management Committee had on 16 August endorsed his action in suspending him [Mr Mistlin], pending formal disciplinary proceedings.  He informed the Applicant that he was required to attend a formal disciplinary hearing at the Law Centre on 1 September to face the following charges:
“1)  A charge of gross misconduct in that you were party to the issuing of a malicious letter about ... [a named individual],  2) a further charge of gross misconduct in that you breached ‘trust and confidence’ by inappropriately issuing a letter to Law Centre members, and  3) a charge of misconduct in that you stole Law Centre stamps and stationary for the purposes of issuing the letter to Law Centre members.”

	He was informed that he had a right to be accompanied at that meeting.  The basis upon which the management believed that Mr Mistlin was party to the anonymous letter was set out in paragraph 51 of the Tribunal’s decision, namely that it must be by a person from the trade union group.  It was Mr Mistlin’s case that if one looked properly at the reason why he was dismissed, namely substantially for sending that letter, it follows that he was being dismissed in a way which attracted the provisions of the statute which protects people from being dismissed for engaging in trade union activities.

	Mr Patrick told the Industrial Tribunal that it was his judgment that the Applicant had written the letter as he had a motive.  He and certain colleagues were the only members of staff who had expressed any sense of betrayal regarding a memorandum, which that particular individual and somebody else had prepared.  

	The dismissal was effected as from 1 September and the Industrial Tribunal in a decision which can be described as a model of its kind [we would like to express our appreciation of the way in which this decision has been prepared and set out] concluded that the reason why the dismissal had been effected was not by reason of his trade union membership or activities, or because he had threatened to institute proceedings pursuant to the Wages Act.  Mr Mistlin’s point essentially is either that the Tribunal were perverse, or secondly, that the Tribunal had failed to appreciate the argument which was that the very approach which Mr Patrick had taken to ascertain the identity of the culprit, introduced their necessary linkage with trade union activities.  He was looking, as we have indicated, for a culprit who was part of the trade union group.  Accordingly the decision to dismiss for sending the anonymous letter had thus become intrinsically intertwined with trade union activities.

	It was alleged by Mr Mistlin that the Tribunal have failed properly to deal with this argument in their decision.  We disagree.  It seems to us in the first place that it does not logically follow from the fact that culprits were chosen from a group of people who were engaged in trade union activities, that the dismissal of such a person was by reason of his participation or engagement in those trade union activities.  In truth he was dismissed because the employers believed, reasonably, that he had written the malicious anonymous letter.  The Tribunal cannot be faulted in the way in which they have approached the difficult question as to what was the reason for the dismissal.  They have set out the statute.  They have referred to the arguments in essence and their decision is contained between paragraphs 75 and 87.

	It is apparent from the words which they have used, that the Tribunal have been troubled by the suggestion that there was a linkage with trade union activities so as to make the dismissal within their jurisdiction, but, as they have said, they gave anxious consideration to that question.  Paragraph 82 of the decision deals with the involvement of the Applicant in trade union activities:
“The tribunal has given anxious consideration as to whether or not the applicant’s membership of the MSF trade union, or his participation in the union’s activities, or the fact he had taken or proposed to take part in the union’s activities, was the reason or principal reason for his dismissal.  MSF is an independent trade union as defined.  The applicant joined that union in 1993.  The applicant was a shop steward and had been active in his union activities.  Despite this, taking into account the views of the tribunal as to the evidence given before it, it is satisfied that the applicant was dismissed because the respondent thought he was in some way a party to the sending to the production and/or sending of the anonymous letter and had been involved with an attempt to summon an extraordinary general meeting of the respondents corporation.  The manner of the dismissal may not have been fair if tested in accordance with section 57(3) of the 1978 Act.  However this does not mean that the applicant succeeds in this application to the tribunal.  The tribunal has looked searchingly at the matter but, taking into account the evidence which it has heard, does not consider it appropriate to draw the inference that the applicant was dismissed because of his membership of the trade union or his participation or his proposed participation in its activities.”

They reminded themselves of the difficulty of proving a trade union connection in a dismissal, because every employer will invariably deny that there is such a linkage, and have correctly, in our view, reminded themselves of how inferences can be drawn of unlawful conduct by an analogous case in the discrimination field King v Great Britain China Centre.  They looked at the matter in detail, then stood back and looked at it in the round.  

	In our view this was a judgment which was for them and not for us.  We think it wholly unarguable that the Tribunal have erred in law.  Indeed, as we have indicated, we consider that the learned Chairman of the Industrial Tribunal who is charged with the responsibility of writing decisions such as this, is to be congratulated on the way in which he has done it.  Accordingly there being no arguable point of law, this appeal will be dismissed.