Appeal No. EAT/1096/00
	                    EAT/1126/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 November 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR J R CROSBY
MR P M SMITH

MRS B A LINDSAY	APPELLANT

GENERAL CONTRACTING LTD	RESPONDENT
t/a PIK A PAK HOME ELECTRICAL

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR R McKay
(Union Representative)
UCATT
The Labour Hall
Collingwood Road
Witham
Essex CM8 2EE	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before by way of preliminary hearings, two related appeals and in each case the Appellant is Mrs B Lindsay and in each case the Respondent is General Contracting Ltd, trading as Pik a Pak Home Electrical.  One of the decisions appealed against is what might be called a liability decision and the other is a related remedies decision.  

2	Taking first the liability decision, there was a hearing at the Employment Tribunal at Bury St Edmunds, under the chairmanship of Mr D R Crome spread over some 4 days between 19 April and 8 June 2000.  On 9 June, the Tribunal sent out its summary reasons, and on 12 July extended reasons were sent out and the decision was unanimous as follows:
“(i)     the applicant was dismissed from her employment by the respondent on 20 January 2000;
(ii)      the dismissal was unfair by reason of the provisions of section 152(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992;”
and just pausing there, that is broadly speaking, “trade union activity”, and:
“(iii)     any monetary award shall be reduced by 25% having regard to the applicant’s contributory industrial misconduct.”

3	Mrs Lindsay, therefore won, and appeals only against the 25% reduction.  The reduction could only have been made under the Employment Rights Act 1996 section 122(2) so far as concerned the basic award, and under 123(6) so far as related to the compensatory award.  Section 122(2) is very wide in its language; section 123(6) requires there to be shown a causal link between the conduct of the Complainant and the dismissal.  One has to find action of the Complainant that has caused or contributed to dismissal, and, of course, where the dismissal is by reason of section 152(1) - Trade Union Activity - one has to lay aside the trade union reasons as being the cause of the dismissal.  

4	One has to find some conduct other than the trade union activity if there is to be a reduction in the award on that account.  What is it that brought about the reduction? The principal reason for the dismissal was said by the Tribunal to be as follows, in paragraph 20 of the decision on liability:-
“Plainly there has been a dismissal in this case.  The question arises as to the reason for the dismissal.  The Tribunal have decided that the principal reason for the dismissal was the applicant’s membership of UCATT.  We of course bear in mind the alleged industrial misconduct, the relevance of which we shall have to refer to in due course.”
And, a little later, in their paragraph 24, the last sentence, they say:-
“The principal reason for dismissal was that of trade union membership”
The “alleged industrial misconduct” is really referred as such in paragraph 25, the very last paragraph, where the Tribunal says:-
“We find that the applicant was guilty of conduct, not to be disregarded by reason of subparagraph (2) of section 155, which contributed towards her dismissal.  In this rather long decision we do not wish to be drawn into the detail, but we do regard the respondents’ response to the applicant’s behaviour as being heavy handed and over-sensitive.  In all the matters alleged against her she behaved in a light hearted and rather disruptive way, but each and every one of the incidents to which we have been referred merited no more than a verbal warning with counselling, and possibly in some may have justified a first written warning. In the circumstances we consider that it is appropriate to reduce any compensatory award by 25%..”

5	The Appellant, Mrs Lindsay, is somewhat confused by that.  Mr Pamment, the Chief Manager, or the Divisional Manager, had had a list of complaints about her that ran from (i) to (x), which list is then set out by the Tribunal in their paragraph 8.  But the matters are not there described as findings of fact but rather as Mr Pamment’s assertions and it is not clear how far any of them, or all of them, are intended to be findings of fact on the part of the Tribunal.  So there is a lack of clarity there, about what were the incidents of alleged industrial misconduct that the Tribunal had in mind.  

6	There are some other events referred to: Mrs Lindsay had plainly fallen out with Mr Dye, the Warehouse Manager and the Tribunal describes that in their paragraph 9. She is said to have said to him:
“You are a very rude man”
He accepted that he disliked her.  He thought that she encouraged rebellion, but, one might say, hardly successfully, given that she had worked at the company for over 8 years, and yet the company was run by Mr Pamment, who was manifestly anti-union.  Of him it was said in the Tribunal’s paragraph 23

“Mr Dye told Mr Pamment that the Applicant was a member of the Union and Mr Hayward and his colleagues were using the disparaging and abusive comments about “comrades and brothers unite”.  We infer that the message in the office emanated not from office gossip but from Mr Pamment himself that, as the Assyrian came down like a wolf on the fold, so Mr Pamment was coming from Manchester to “sort out this Union business”.

7	So if Mrs Lindsay was a revolutionary, she did not seem to be terribly successful at it. It may be argued, too, that whatever her conduct was, if it was such that it should not be met with more than possibly a first written warning, and that, after all, is after 8 years service, that a 25% reduction would have been disproportionate to the nature of the misconduct, if any.  

8	We see it to be arguable that the Tribunal here, at lowest, failed adequately to explain itself within the guidance given in the well known case of Meek v City of Birmingham.  If Mrs Lindsay asks herself why was it that she suffered a 25% reduction, then she cannot fairly see from the Tribunal’s reasoning why that was.  We remind ourselves that we are only concerned, at this stage, with what is arguable, and we see there to be an arguable error of law there, sufficient to allow the matter to go to full hearing. 

9	Now, turning to the remedy decision, on 17 July 2000, the Tribunal heard the case as to remedy; its decision was that Pik a Pak should pay to Mrs Lindsay £4,862.50, calculated as the decision set out, and, of course, in the calculation of that sum, the 25% reduction was taken into account.  It seems to us that if the 25% was vulnerable to error of law in relation to the liability decision then it must follow equally that it is vulnerable insofar as it plays a part in the remedy decision; so the remedies conclusion is also proper to, in our view, to go to a full hearing as containing arguable error of law. 

10	We ought to refer briefly to an incident concerning a Mr Hubert.  That is dealt with in the liability decision at paragraph 18:-

“Mr Pamment’s evidence is that, following a disturbance concerning Mr Hubert which does not engage this Tribunal at all, he confronted the applicant and told her that he was fed up with her and wanted her to pack her personal belongings and leave.”

It is the Appellant’s case that only literally minutes before her dismissal, Mr Hubert had gone to her for assistance. It does not appear why, but, presumably, it was either because she was a union member or that she was someone who would be willing to stand up to management, or both.  It was immediately after that, that Mr Pamment told her to leave.  It is at lowest possible, as it seems to us, that her role as someone to whom Mr Hubert went in his trouble was relevant to, and part of, the facts surrounding the dismissal.  It is not possible fully to assess the reason for her dismissal without some knowledge of this incident with Mr Hubert.  The Tribunal said it:
“did not engage the Tribunal at all”
and it may be that it was thus in error, but the full hearing will not be able properly to consider whether it was an error of law to regard the Hubert incident as not engaging the Tribunal without knowing in more detail what the Hubert incident was.  

11	So that it seems to us that the Chairman’s Notes are necessary in relation to the Hubert incident.  Indeed, there are passages in the decision which are very difficult to understand; speaking simply for myself, I have had difficulty in understanding paragraph 23 (last sentence) of the liability decision and paragraph 24 (the first sentence) in that decision, and the safer course, it seems to us, for the full hearing to be adequately informed, is for Chairman’s Notes of all oral evidence given at both hearings to be available at the full hearing at the Employment Appeal Tribunal.  Accordingly, the Chairman is to be requested to supply his notes of all evidence given at each hearing, and accordingly both the cases go forward to a full hearing, and Chairman’s Notes are to be requested, as we have indicated.