Appeal No. EAT/176/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1 December 1994
	Judgment delivered 28 March 1995

	Before

	HIS HONOUR JUDGE BYRT QC

	MR J R CROSBY

	MR D G DAVIES

VASCROFT CONTRACTORS LIMITED	APPELLANTS

(1) MR D M FALVEY (2) MR C CLARKE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR DAVID BEAN  
(Of Counsel)
	Warner Cranston
	Pickfords Wharf
	Clink Street
	London
	SE1  9DG

For the Respondents	
MR JOHN BOWERS
(Of Counsel)
Pattinson & Brewer
30 Great James Stret
London
WC1N  3HA

	JUDGE BYRT QC:  This is an appeal from a decision given by the Industrial Tribunal sitting at London (South) on 7 and 8 October 1993.  By a majority, they decided that the employees, the Respondents to this appeal, had on 5 June 1992 been unfairly dismissed.

	The facts as found by the Tribunal are as follows:-

	The employers are building contractors who had contracted to undertake an extensive refurbishment of the Harrington Hall Hotel, Harrington Gardens, London SW7.  Mr Falvey had been engaged by them as a bricklayer in March 1992 and Mr Clarke as a builder's labourer in the April.  At the hearing, the employers had taken the point that they were not employees at all but sub-contractors.  The Tribunal unanimously found them to be employees and Mr Bean, who appeared before us for the employers, has not sought to argue against that finding.

	In the May, there was an industrial dispute at the site.  This was resolved after negotiation between Mr Gould, a full-time official of UCATT, and the employers.  The Tribunal thought it significant that the beginning of that dispute coincided with, if not caused by the dismissal of Mr Clarke, a member of that union.  He was reinstated in his employment some 7 or 8 days after the resolution of that dispute.

	Mr Gould thereafter continued his efforts to improve the working conditions on site.  He frankly told the Tribunal that one of his objectives was to increase the membership of his union amongst the workforce.  It was agreed by management that he could hold a meeting on site.  However, permission to do so was cancelled at the last minute.  Despite such cancellation, Mr Gould went ahead with the meeting.  The Tribunal had no doubt that he was well intentioned in doing so.  Mr Vekaria, a director of the Appellant Company, took a different view and ordered Mr Gould off the site.  Mr Gould left but he was followed off by many members of the workforce.  Work on the site came to a halt.  Mr Clarke and Mr Falvey were two such members.

	The Tribunal found that the walk-out which began on 4 June, ended by 11.30 am on 5 June; that it constituted industrial action and further, largely on the strength of Mr Gould's evidence, that such action was unofficial.  

	On 5 June, at about 9.30 am, the employers handed out notices to the workforce stating that the employers had entered into a single union recognition agreement with the EETPU and that henceforth no other union would be recognised on site.  The notice went on to inform those taking part in the unofficial industrial action that they should resume work within two hours or their employment would automatically be terminated.  The Tribunal found that the notice had been distributed at 9.30 am and that the two-hour time limit would therefore have expired at 11.30 am.

	The Tribunal found that most, if not all, the employees returned to work before the expiry of the deadline.  After some debate, Mr Clarke and Mr Falvey decided to do so too.  The Tribunal found that they had reported back for work before the 11.30 am deadline, and that is a finding which Mr Bean, in arguing the case before us, has not sought to challenge.  The two were met by Mr Vekaria at the entrance to the site and denied entry on the ground that their return was too late.  They were told they were dismissed.  The Tribunal found that the employers well knew the time limit for return to work had not expired, and accordingly they concluded the two employees had had their employment terminated for a reason the employers had not disclosed and which was other than that given to the men at the time.

	The Tribunal found that the single union recognition agreement was a sham; in effect it was a device invented by the employers to isolate and exclude Mr Clarke being a member  of UCATT and Mr Falvey who belonged to the TGWU.

	In giving their findings as to the employers' reason for dismissal, the majority of the Tribunal said at paragraph 22:

		"Taking these conclusions and findings together, Mr Falvey and Mr Clarke were not dismissed for missing the deadline, and therefore the reason for their dismissal is not a true one.  The true reason for their dismissal is therefore one which was concealed from us by the Respondents.  That concealed reason was related to their activities as shop stewards, both before the 4 June, and in respect of the dispute which began on the 4 June."

	At paragraph 23, they said:

		"...the reason for the dismissal of Mr Clarke and Mr Falvey was that in each case, each man was a member of an independent trade union, in the case of Mr Clarke the Transport & General Workers Union, and in the case of Mr Falvey, UCATT.  They were active and prominent members of those trade unions at the site concerned in this dispute.  Those two unions themselves were active in trying to improve conditions at the site.  It was that degree of activity which motivated the Respondents to enter into the sole recognition agreement with EETPU, with a view to excluding the two unions whose activities had been so inconvenient to the Respondents.  The intention of the Respondents, and with it the reason for the dismissal of the Applicants, was to deter and discourage membership of the two "active" unions, rather than simply seeking to deter the activities of the Applicants as shop stewards."

	On these facts, as found, Mr Bean raises two substantive points of law.  First, he says the Tribunal had no jurisdiction to consider the employees' claims because, at the time of their dismissal, they were still engaged in an unofficial industrial action, and so their claim was excluded under section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992.  This point needs further consideration.

	We accept, on a simple construction of the statute that, once the employee has ceased his unofficial action, the section no longer has application.  However, it is not sufficient for the employee merely to have formed the intention to resume work.  The intention must be evidenced by his/her actions:  see Coates v Modern Methods and Materials Ltd [1982] ICR 763.  We accept that those actions must be unequivocal and made manifest to the employer so that his intention is thereby communicated to the party for whom he is working.

	We were referred to the case of Heath v Longman [1973] ICR 407, an authority which considered the effect of section 26(1) of the Industrial Relations Act 1971, but both parties to the present appeal have accepted that the ratio of that decision is applicable to section 237 of the 1992 Act.  In it, the National Industrial Relations Court rejected the submission that some private agreement between those on strike which is not communicated to the employer suffices to terminate unofficial industrial action.  It was however accepted that it was not necessary for the employee actually to resume work before the unofficial action concludes.  As in this cited case, a telephone call to the employer, offering a resumption of work, is sufficient.  In giving the judgment of the Court, Sir Hugh Griffiths, as he then was, said this:

		"It appears to this Court that the manifest overall purpose of s.26 is to give a measure of protection to the employer if his business is faced with ruin by a strike... That being the overall purpose, it would appear to be manifestly wrong, when an employer has been told that strike action has been called off, that he should nevertheless still be free to dismiss those who took part in the strike without any risk of a finding that he was acting unfairly."

	It would be difficult for Mr Bean to challenge the fact that Mr Clarke and Mr Falvey sought entrance to the site because they had intended to end their part in the unofficial industrial action and return to work.  Having heard the evidence and seen the employees for themselves, the Tribunal found that that was their intention.  In paragraph 27 of their Reasons, the Tribunal state that it was:

		"common ground that each of them reported back to the site, purporting to resume his duties."

So it would seem that that fact was not disputed at the hearing.  Mr Bean now says that there was no evidence before the Tribunal that the employees conveyed this message to the employers before Mr Vekaria dismissed them?

	It is true that the Tribunal makes no express finding that the employees told Mr Vekaria that they were returning to work before their dismissal, nor is there a finding whether they were inside or outside the entrance before that moment.  However, in paragraph 27, the Tribunal found that:

		"the dismissal took effect by reason of the refusal of Mr Vekaria to allow them back into the site to resume their duties, at a time when each of them was clearly attempting to do so."

We are not expressly told why they said it was so clear that the two men were attempting to resume their duties.  Perhaps they thought that, in commonsense, the message was to be inferred from the fact that the employers had given a deadline by which all employees had to return to work; others had presented themselves already and gone back to work, and it was just obvious, by the presentation of themselves in the same way, that Mr Clarke and Mr Falvey were making the same statement.  The Tribunal might be forgiven for not spelling out their reasons for saying the matter was so clear when it would seem that, at the Tribunal hearing, the factual dispute relevant to this issue of jurisdiction was whether the two men had presented themselves before the deadline, and they had found against the employers on that point.

	In our view, it was reasonable for the Tribunal, on their findings of fact, to find that the actions of the employees adequately conveyed the message to the employers that they had stopped taking part in the industrial action and had turned their backs on the unofficial strike before their moment of dismissal.  In our view, it is plain that the Tribunal (to use the words of Sir Hugh Griffiths) considered it would be manifestly wrong for the employers to feel that, notwithstanding the employees' presentation of themselves at the site entrance, they were free to dismiss them without the risk of a finding that they acted unfairly.

	Accordingly, we hold that the Tribunal were right, on their findings, to accept jurisdiction and to proceed to consider the issue whether the dismissal was fair.

	Mr Bean's second point is that the Tribunal were, at best, ambiguous in their finding as to the employers' reason for dismissal and, at worst confused as to what they had to be satisfied about in order to satisfy the requirements of section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.

	The Tribunal's dispute within their own number turned on whether the employees' dismissal was personal to Mr Clarke and Mr Falvey themselves because of their confrontational style of disputation with the employers.  The majority rejected this view, essentially because they took a differing view, from that of the minority, of the single union recognition agreement.  Instead they focused their attention on the employees' activities, official and unofficial on behalf of the trade union membership on the site.

	In moving to this consideration, the Tribunal began, in paragraph 23 of their Reasons, by correctly addressing themselves to the specific requirements of section 152 of the 1992 Act and the burden of proof arising under that section.  We are of the view since the employees had not worked for the employers the full qualifying period of time to bring their claims within the purview of section 57 of the 1978 Act, the burden of proof remains where it is placed by section 152, namely on the employee.  This causes the employees little difficulty as a result of the Tribunal's finding that the employers had given a false reason for the dismissals.  Provided they advanced a prima facie case which the Tribunal found warranted on the evidence, they had in fact discharged their burden because the employers had no positive case with which to challenge it.  We do not believe that Mr Bowers, for the employees, was challenging this or saying anything more.

	When considering the employers' reason or reasons for dismissal, it seems at first sight, that the Tribunal were considering three reasons, namely the employees' activities as shop stewards (a) before the 4 June, (b) in respect of the dispute which began on 4 June, and (c) the fact of their membership of the TGWU and UCATT.  Mr Bean's argument was primarily based on two premises.  First, he claimed that the employees' activities in respect of the dispute which began on 4 June were activities which were outwith the provisions of section 152 because the dispute was unofficial and, anyway, it was an activity which occurred within the employers' working hours without their consent:  see Drew v St Edmundsbury BC [1980] ICR 513 and Britools Ltd v Roberts [1993] IRLR 481.  Second, if in advancing their reasons, the Tribunal failed to state which of those three reasons they found to be the employers' principal reason, then how is anyone to know whether their principal reason might not have been the one which is outwith the section.

	Mr Bowers argues that the three reasons are accumulative, and if one happens to be outwith the provisions of this section, it does not invalidate the Tribunal's decision based in part and justified by the employers' two reasons which would bring that decision within the section.  He further says, when discussing the employees' activity in relation to the industrial action on 4 June, the fact that the strike action might be an activity outwith the section, does not prevent all the trade union activity which precedes and leads up to such strike action being activity within the section:  see Britools Ltd (supra).  We consider it unlikely the Tribunal placed much, if any, reliance upon such an argument because the dispute which led up to the walk-out of the workforce was not preceded by any trade union activity.  It blew up in a trice at the sight of Mr Gould being removed from the building site.

	We accept Mr Bean's submission that it is likely that the activity of Mr Clarke and Mr Falvey in relation to the industrial action taken on 4 June was outside the scope of section 152 and none of the findings of the Tribunal suggests it might be otherwise.  Since the Tribunal do not expressly name one of the employers' reasons for dismissal, their principal reason, the main issue in this appeal, in our view, becomes this:  Is there a real possibility, a possibility other than a fanciful one, that the Tribunal might have decided the employers' principal reason for dismissal to be that which was  outwith the section?  If there is a reasonable doubt about the matter, this case would at the least have to be remitted to the Tribunal for them to clarify their findings.

	At the outset of our consideration of this issue, we remind ourselves that it is not our function to scrutinise the Tribunal's Reasons with the proverbial toothcomb to find an error of law.  We have to take their decision as a whole and consider whether it is or may be untenable because of such an error.

	Seeing that it was the genuineness of the single union recognition agreement which divided the Tribunal so as to prevent them coming to a unanimous decision, we think it reasonable to suppose that a finding on this issue was what decided how the majority and minority found respectively.  Whilst we do not suppose that Mr Bean would accept that the majority's view of the agreement was the right one, he did not seek to challenge the reasoning whereby they came to that view nor the fact that their decision upon it was a finding of fact which a reasonable Tribunal might have come to.  This being a position with which we would concur, it becomes a crucial factor in the equation that the single union recognition agreement was a sham.

	Thereafter, at the outset of paragraph 23, the Tribunal directed themselves accurately on the law and, in the remainder of that paragraph, sought to apply that law to those facts which they deemed relevant to their decision.  In the forefront of those facts, they placed the sham agreement, and having done so, sought to deduce from the fact that the employers had felt the need to invent such an agreement, the employers' strategy and the objective they sought to achieve thereby.  The employers' strategy was to accept the workforce's return to work only on the condition that those who were TGWU or UCATT members forswore their unions and recognised the single union's representation.  The employers gambled that the workforce, would wish to return to work on the site and would be prepared to do so on the terms on offer.  The employers' objective was thereby to deprive UCATT and the TGWU of all recognition and so their agents, Mr Clarke and Mr Falvey, of all authority so that they no longer could continue their activities which had been of such inconvenience to themselves.  The Tribunal expressly found that it was the employers' intention to deter and discourage membership of the two active unions rather than simply to deter the activities of the Applicants (Mr Clarke and Mr Falvey) as shop stewards.

	Focusing in on the reason for the employees' dismissal, the Tribunal found the reasons for their dismissal to be the same as for excluding the unions, namely "to deter and discourage membership of the two active unions".  This passage in paragraph 23 has to be read in the context of what was said in the last sentence of paragraph 22:

		"...Mr Vekaria believed that his ultimatum would effectively outmanoeuvre the Applicants and force them back to work on his terms; but the Applicants delayed, and by that delay intended to make it clear that they would not subordinate their will to that of Mr Vekaria; and Mr Vekaria then decided to meet that delay on the part of the Applicants by an ill considered decision to dismiss them, even though they reported for work within the deadline which he himself had set."

In short, it would seem that the Tribunal found the employers doubted the Applicants' whole-hearted submission to the single union representation and therefore dismissed them so that the line dictated by the sham agreement could be held.

	It is clear to us that the majority decision of the Tribunal is set out in paragraph 23, following their self direction there as to the law.  Their exposition of the employers' reason for dismissal is inextricably tied in with their fundamental finding that the single union recognition agreement was a sham.  Their finding as to this reason for dismissal gives meaning and purpose to that fabricated agreement.  Whilst we can contemplate another Tribunal coming to a different conclusion, as indeed the minority has in this instance, we are satisfied that the decision to which the majority came to in this paragraph is one which a reasonable Tribunal could come to.

	Reverting now to the Tribunal's statement in paragraph 22 that the employers' reason or one of their reasons for dismissal was the employees' activities as shop stewards in respect of the dispute on 4 June:  this statement is not supported by any finding of fact or reasoning by the majority.  We would question whether the Tribunal were, at this point, seeking to make a definitive finding as to a reason for dismissal.  If they were, we are quite satisfied, taking the judgment as a whole, that there is no likelihood the Tribunal were looking upon the employees' participation in the walk-out on 4 June as a principal reason for dismissal.  In fact, in paragraph 23, they expressly, and in their disagreement within the minority decision, implicitly go a long way to say so.

	In conclusion, we see no purpose would be served in remitting this case to the Tribunal for further consideration.  Accordingly, we dismiss this appeal.