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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mihaj v Sodexho Ltd (Trade Union Rights : Interim relief) [2014] UKEAT 0139_14_2305 (23 May 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0139_14_2305.html Cite as: [2014] UKEAT 0139_14_2305, [2014] UKEAT 139_14_2305, [2014] ICR D25 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
MRS M V McARTHUR FCIPD
MRS L S TINSLEY
![]() | APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS MELANIE TETHER (of Counsel) Instructed by: Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
For the Respondent | MR ANDREW ALLEN (of Counsel) Instructed by: DLA Piper UK LLP 3 Noble Street London EC2V 7EE |
SUMMARY
TRADE UNION RIGHTS – Interim relief
An Employment Judge dismissed the Claimant's application for interim relief under Trade Union and Labour Relations (Consolidation) Act 1992 section 161. The Employment Judge erred in determining that an Employment Tribunal at a liability hearing would not be likely to find that the Claimant was dismissed for taking part in trade union activities. He erred in so deciding on the basis that it was not likely that the Tribunal would find that the true reason for the dismissal was the activity as opposed to the way in which it was carried out. Absent certain features not present in this case, the way in which trade union activities are carried out is not material to the question of whether they fall within the scope of sections 161 and 152. Bass Taverns Ltd v Burgess [1995] IRLR 596 applied.
THE HONOURABLE MRS JUSTICE SLADE DBE
The Relevant Statutory Provisions
"For the 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...in the activities of an independent trade union at an appropriate time..."
"(l) An employee who presents a complaint of unfair dismissal, alleging that the dismissal is unfair by virtue of section 152 may apply to the tribunal for interim relief."
"If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply."
The section then set outs the consequential relief.
Outline Relevant Facts
The Judgment of the Employment Judge
"Turning to the trade union activity claim, I reject Miss Chudleigh's first submission. In the first place, it seems to me that there is a real question whether the language of the 1992 Act, s152(1)(b) is engaged at all, certainly in the case of the first allegation. Why should a trade union representative who takes sides in a personal spat, not said to relate to union business, between two members of his union, be seen as engaging in the activities of the union? But in any event, even if this profound doubt were overcome, it seems to me improbable that the Respondents, in the person of Mr Dye, will ultimately be held to have relied on the Claimant's activity (in relation to either charge), rather than on the way in which he conducted himself. There was nothing remarkable about an enthusiastic union representative getting involved in the dispute between Mr Aslam and Ms Pok or urging Mr Gyamfi to take action in pursuit of a particular concern; what was remarkable was that serious complaints resulted of improper or oppressive conduct which appeared to have caused offence in one case and severe distress in the other. In my judgment it is not 'likely' that the Tribunal will find that the true reason for dismissal was the activity, as opposed to the way in which it was carried out."
The Submissions of the Parties
Discussion and Conclusions
"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 [what was then] Section 58 of the Act.
"...must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally the right to take part in the affairs of the trade union must not be obstructed by too easily finding acts done for the purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate."
Phillips J added at paragraph 20, in relation to acts claimed to come within the protection given to the carrying out of trade union activities:
"We do not say that every such act is protected. For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for dismissal which would not be unfair."
"There was nothing remarkable about an enthusiastic union representative getting involved in the dispute between Mr Aslam and Miss Pok or urging Mr Gyamfi to take action in pursuit of a particular concern"
That passage shows that at that stage the Employment Judge was proceeding on the basis that the actions which are alleged to have led to the dismissal were trade union activities. However the Employment Judge continued:
"what was remarkable was that serious complaints resulted [in] improper or oppressive conduct which appeared to have caused offence in one case and severe distress in another."
The operative part of paragraph 21 then follows, namely that, in the Employment Judge's Judgment, it is not likely that the Tribunal will find that the true reason for dismissal was the activity, as opposed to the way in which it was carried out. This conclusion shows that, in the final analysis, the Employment Judge proceeded on the basis that the matters relied on, to dismiss the Claimant were trade union activities. However the way in which they were carried out removed them from the protection of the legislation and therefore rendered it unlikely that a Tribunal, on a full Liability Hearing, would find that the reason for the dismissal was carrying out trade union activities.