Bone v North Essex Partnership NHS Foundation Trust [2016] EWCA Civ 45

Claimant’s appeal against the EAT’s decision to allow the Respondent’s earlier appeal against a Tribunal’s decision to uphold the Claimant’s claims of detriment on grounds related to trade union activities. The Court of Appeal allowed the Claimant’s appeal, set aside the EAT decision and restored the judgment of the Tribunal.

The Claimant, who remains employed by the Respondent as a registered mental nurse, is a leading activist in the Workers of England Union ("WEU"). In 2011, he brought various claims against the Respondent, broadly alleging that a series of the Respondent's acts and omissions constituted either racial discrimination or detriment on grounds related to his trade union activities. Most of the claims were rejected. However, the Employment Tribunal found that local Unison officials had campaigned against the Claimant - referring to him as a 'bigot' and intimating that the WEU was 'crypto-fascist' and linked to the BNP – and that the Respondent had taken only limited, informal action against the employees concerned, in order to maintain relations with Unison and have a 'quiet life'. By failing to deal with these complaints in accordance with its disciplinary procedures, the Respondent had deliberately subjected the Claimant to detriment with the main purpose of deterring the Claimant from undertaking trade union activities on behalf of the WEU. The EAT allowed the Respondent's appeal on the basis of perversity and alleged errors of law. The Claimant appealed to the Court of Appeal, broadly on the grounds that the Tribunal was entitled to find that the Respondent had subjected him to detriment by deliberately failing to act and had done so for the main purpose of deterring him from undertaking activities on behalf of the WEU.

The Court of Appeal allowed the Claimant's appeal. On the facts, the Tribunal found that the Respondent's main purposes in not taking action against the employees concerned were to eliminate and/or marginalise the WEU's influence in the workplace and to placate Unison. In the circumstances, this omission was sufficient to constitute a sole or main purpose to prevent or deter trade union activities, in contravention of s.146(1) Trade Union and Labour Relations Act 1992. The EAT decision was set aside and the Tribunal's judgment restored.

Tim Crane, Employment Law Solicitor

____________

Case No: A2/2014/2648

Neutral Citation Number: [2016] EWCA Civ 45

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HIS HONOUR JEREMY MCMULLEN QC,

MR A HARRIS and MR B M WARMAN

UK/EAT/0352/12/DA

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/02/2016

Before :

LORD JUSTICE LAWS

LORD JUSTICE FLOYD

and

LORD JUSTICE BEAN

Between :

BONE (Appellant) **

and

NORTH ESSEX PARTNERSHIP NHS FOUNDATION TRUST (Respondent)

Mr Gwilym Harbottle (instructed by Tilbrook's) for the Appellant

Ms Rehana Azib (instructed by Bevan Brittan) for the Respondent

Hearing date : 20 January 2016

Judgment Lord Justice Bean :

  1. Mr Bone began working for the North East Essex Partnership NHS Foundation Trust ("the NHS Trust" or "the Trust") as a registered mental nurse in June 2006. In 2009 he became a leading light, if not the leading light, in the Workers of England Union ("WEU"), a small trade union. He was also a member of a much larger trade union, Unison.
  1. The NHS Trust has a "working in trust partnership agreement" with a number of recognised trade unions, including Unison and the Royal College of Nursing. The WEU was not a party to that agreement. Neither the recognised trade unions nor the NHS Trust welcomed the arrival of the WEU on the scene.
  1. In 2011 Mr Bone brought four claims in the employment tribunal against the Trust alleging that a large number of acts or omissions during the period October 2009 to October 2011 constituted either racial discrimination (on the grounds of his being English, or of the WEU having the word "England" in its name) or detriment on grounds related to trade union activities, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, or both. In its responses the Trust disputed all Mr Bone's claims on the merits, but did not dispute that WEU was an "independent trade union" as defined by section 5 of the 1992 Act.
  1. The trial of Mr Bone's claims took place over seven sitting days in January 2012 at Bury St Edmunds before Employment Judge Pritchard-Witts and two lay members. Again, no point was raised about whether the WEU was an independent trade union. Following two days of deliberation, the tribunal handed down its reserved judgment on 1st March 2012. Mr Bone's claims of racial discrimination were all rejected, as were many of his allegations of contraventions of s 146; but the tribunal upheld four specific complaints which he had made under s 146. They were numbered 1C, 1D, 1E and 1M:

(1C) On 5 May 2010, the eve of the 2010 General Election in which Mr Bone was a candidate of the English Democrats in Colchester, Steve Adshead, a fellow employee and Unison local representative, circulated an e-mail suggesting that WEU was linked with fascism and the British National Party. The NHS Trust failed to deal with this matter in accordance with their disciplinary procedures and dignity at work policies.

(1D) At a meeting in May 2010 Mrs Chalkley, a nursing colleague, described Mr Bone as a bigot. This remark was not made in Mr Bone's presence, although it came to his attention later. Mrs Morgan, the manager to whom the remark was made, gave Mrs Chalkley some informal advice that the remark was inappropriate, but the employment tribunal found that the employers should have taken more robust steps to protect Mr Bone.

(1E) On 28 May 2010 Mr Adshead arrived at the duty office, in order to commence his duties. He greeted Mr Bone with the words "Hello Adolf". The Trust did not deal with this matter effectively, nor did it require Mr Adshead to apologise.

(1M) On 1 December 2010 Mr Hutchison, a local Unison branch official, sent an e-mail to a member of staff, Mr Alexander Watts, via the internal e-mail system. Mr Hutchison expressed concerns about the "creeping crypto fascism" of WEU. This e-mail was, in the tribunal's view, the consequence of the Trust management's "weak and lamentably ineffective conduct" in failing to protect Mr Bone.

  1. The Trust appealed to the EAT against the decision upholding these four complaints; there was no cross-appeal by Mr Bone. The appeal came on before His Honour Judge McMullen QC, Mr M Clancy and Mrs A Gallico. The merits of the appeal were not considered, because the EAT themselves raised an issue as to whether the employment tribunal had had jurisdiction to hear the complaints under s 146. There was no dispute that the WEU was and had been at all material times a trade union named on the list maintained by the Certification Officer. But the EAT took the view that it was not clear whether the trade union was (or had been at the time of the events in issue) properly described as "independent". They imposed a stay on the appeal and gave the WEU the opportunity to apply to the Certification Officer for a certificate of independence. Such a certificate was duly granted on 27 June 2013.
  1. On 30 September 2013 the EAT, with the same constitution as before, resumed the hearing of the Trust's appeal. They held that the certificate of independence did not have retrospective effect and that at the relevant time the WEU had not been an independent trade union. They therefore allowed the appeal and dismissed the s 146 claims on the basis that the employment tribunal had never had jurisdiction to hear them. They did not deal with any of the Trust's grounds of appeal on the merits.
  1. On 15th May 2014 this court (Jackson, Briggs and Christopher Clarke LJJ), in a judgment reported at [2014] ICR 1053, held that the EAT's decision on the jurisdiction issue was wrong. Since the employers had never disputed the independence of the WEU before the employment tribunal, the Tribunal had had jurisdiction to hear the case and the point raised for the first time by the EAT was not a sound one. The court remitted the hearing of the Trust's appeal on the merits to the EAT.
  1. Thus it was that on 10th July 2014 the Trust's appeal came on for the third time in the EAT before the same judge (although he had by this time retired) and two new lay members. Again, the EAT allowed the employers' appeal, this time on the merits on the basis of perversity and alleged errors of law. They declined to remit the case to the employment tribunal and instead dismissed Mr Bone's claims in their entirety. On 30th September 2014, Lewison LJ granted Mr Bone permission to appeal to this court against that decision.

The substantive law

  1. Section 146(1) of the 1992 Act, as amended, provides:

"

Detriment on grounds related to union membership or activities

(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (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 … (ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions …"

  1. Section 148(1) provides:

"On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act."

  1. The predecessor of s 146 was s 23(1) of the Employment Protection (Consolidation) Act 1978, which was considered by this court in Department of Transport v Gallacher [1994] ICR 967. The applicant was employed full time on trade union activities. He applied for promotion. He was told that he would not be suitable for promotion unless he undertook a line management job, which in effect meant reducing his trade union activities. The tribunal had upheld a complaint that the employer had thereby taken action against him for the purpose of deterring him from taking part in the activities of an independent trade union. The employers appealed to the EAT, which held that the industrial tribunal had failed to distinguish between the purpose and the effect of the employer's action. On Mr Gallacher's further appeal to this court Neill LJ said (at 975 B-G):

"In James v. Eastleigh Borough Council [1990] I.C.R. 554, 575–576, Lord Goff of Chieveley pointed out that if words such as "intention" or "motive" are to be used as a basis for decision they require the most careful handling, and that in some circumstances the concept of "purpose" may be relevant both to intention and motive. I respectfully agree and would add that it is usually dangerous to use "intent" and "purpose" as though they were interchangeable. Accordingly, it seems to me that it is important to adhere strictly to the statutory words. The question becomes: were the recommendation or finding that the applicant should be graded C+ and therefore not passed for promotion and the comment or guidance that to be successful he needed more managerial experience made or given "for the purpose of" deterring him from continuing with his full-time trade union activities?"

In my judgment, in this context "for the purpose of" connotes an object which the employer desires or seeks to achieve. As Dillon L.J. pointed out in Associated British Ports v. Palmer [1994] I.C.R. 97, 102E there is a close link between "purpose" in section 23 and "reason" in section 58 of the Act of 1978. Furthermore, it is to be remembered that the "purpose" envisaged in section 23(1) is an illegitimate purpose which contravenes the statute. In the present case the purpose of the board's recommendation was to ensure that only those with sufficient managerial experience were passed fit for promotion to the grade of senior executive officer. The additional comment or guidance given to the applicant was, as I see it, to explain to him what choices were available to him.

With all due respect to the otherwise careful decision of the industrial tribunal, I am satisfied that the word "purpose" was misconstrued. I am further satisfied from the facts set out in the decision that no industrial tribunal could find on those facts that any action taken by the employer was "for the purpose" of deterring the applicant from continuing with his union activities. The employer had to be satisfied that any person promoted to the senior executive officer grade had sufficient managerial experience and had demonstrated the requisite degree of managerial skill. If a special exception had been made in the applicant's case, it seems to me that there would have been a contravention of paragraph (11) of the facilities agreement which provided that "accredited representatives should be treated neither more nor less favourably than other staff."

Accordingly, I would dismiss the appeal and, furthermore, dismiss the applicant's complaint."

Perversity appeals

  1. Although this is an appeal by Mr Bone against the decision of the EAT dismissing his claim it is well settled (see Vento v Chief Constable of West Yorkshire that the proper focus of this court is on the reasoning not of the EAT but of the employment tribunal. Since by statute the jurisdiction of the EAT is limited to questions of law, the proper approach is to consider first what findings of fact the employment tribunal made; then whether those findings involve any error of law. It is possible for findings of fact to be overturned as perverse if there was no evidence to support them; but, as the EAT themselves noted in the present case, "it must be borne in mind that an overwhelming case is to be made for perversity to succeed": see Yeboah v Crofton [2002] IRLR 634.

The employment tribunal's findings of fact

  1. The decision of the employment tribunal, as set out at the start of their reasoned judgment, was that:-

"… in respect of four occasions the respondents subjected the claimant to detriment by their deliberate failure to act for the main purpose of preventing or deterring him from taking part in the activities of the Workers of England Trade Union at an appropriate time."

  1. The employment tribunal found:-

"2. The essence of Mr Bone's claim was set out initially in no less than fifteen and a half pages of typed particulars under a covering letter dated 7 February 2011 which is referred to within form ET1 submitted on 20 January 2011 to this Tribunal. It is perfectly impracticable for the Tribunal to set out everything that is within the body of that letter but suffice it to say that Mr Bone, a registered mental health nurse, had worked with the Respondents since 2006 and had been employed by the NHS since 1995. The problems that Mr Bone started to experience at work evolved out of his membership of the Workers of England Trade Union. It was not so much that his employers, at the outset at least, were ambiguous about the union and its connection with the English Democratic Party but, rather, the fact that the recognised trade unions, and especially Unison, took a virulent dislike to Mr Bone and his members and conducted a highly offensive campaign against them. Initially the problems related to the question of recognition and this is a feature of this case that we have considered carefully within the body of our findings of fact. Being a non-recognised trade union meant that they did not enjoy the privileges and powers associated with recognition that entitled the bigger unions, such as the Royal College of Nursing and Unison, to enjoy facilities and to participate on the joint working committee of a large concern such as the National Health Service. Allied to which was the fact that Mr Bone was an active trade unionist who is a gentlemen not slow to take up issues which either affected himself or his members and this clearly served as something of an irritant to those who had the task of line managing him.

  1. As we shall set out below this is not a case where the Tribunal has concluded on the evidence that the Claimant was subjected to unlawful discrimination upon the protected characteristic of race. However, there are four issues upon which the Tribunal has unanimously found that the Respondents subjected Mr Bone to a detriment by deterring him from taking part in the activities of the Workers of England Trade Union at an appropriate time or penalising him for doing so. The basis upon which this has been found is set against a background of disturbing dimensions. It is quite clear to this Tribunal that the local officials of Unison set out to ostracise and intimidate Mr Bone because of his membership of the Workers of England Trade Union and the leading role that he was taking in the workplace on their behalf.

20 Whilst the Tribunal accepts that there was no active conduct on the part of the Respondents to assist Unison in its misguided objectives, nevertheless, the Respondents' lamentable failure to investigate, suspend and discipline those responsible who were their employees, despite their trade union membership, was remarkable. This was a striking example of an employer failing to protect an employee from a campaign of harassment and bullying, pursued with a disturbing degree of spitefulness which led to Mr Bone having to take sickness absence because of a stress related condition. The consequence of this was to prevent him at an appropriate time from taking part in the activities or his trade union and also, or in the alternative, penalising him because of that membership out of a fear on the part of the Respondents of offending one of the major recognised trade unions in the workplace. By "appropriate time" the Tribunal means that the Respondents' failure to act had the general impact of inhibiting Mr Bone's ability to participate in union activity in the workplace. It also penalised him by causing him distress and enhancing the feeling of isolation that he suffered.

  1. It is all very well and good for a Respondent to pride itself on its relationship with its recognised trade unions and, indeed, it must be remembered that Mr Bone was a member of Unison, but that pride is no excuse for a surrender of responsibility on the scale that has been demonstrated to this Tribunal. It had the effect of giving solace and comfort to those who wished to eradicate Mr Bone as an active member of the Workers of England Trade Union from the workplace and to frustrate and liquidate any influence that he might have over the potential recruitment of additional trade union members to the prejudice of the recognised trade unions operating within the Respondents' Trade Union working in partnership agreement. It is against that background that our findings must be viewed and now we set out our conclusions in respect of each issue accordingly.

  1. The Tribunal has little doubt that the Respondents were fearful of intervening as they anticipated a backlash from Unison which is not the type of backlash they would have received had they attempted to deal with a message of this kind that had been issued by the Workers of England Trade Union. The failure to deal with the matter in accordance with their disciplinary procedures and dignity at work policies was a clear dereliction of duty the effect of which was foreseeable, namely that it would deter Mr Bone from taking part in the activities of his Trade Union at an appropriate time and/or penalising him for doing so. The two matters flow from their failure to fulfil their duties as an employer. Neutrality in this case would have manifested itself by treating Unison in the same way as it would have treated the Workers of England Trade Union had they issued an overt threat of this nature which vilified a trade union in the workplace. As a consequence the Respondents are liable for the detriment of the fear, shame and ostracism suffered by Mr Bone when members of the workplace sought to clarify with him whether his union and political affiliations represented the views associated with the message from Messrs Adshead and Hutchison on behalf of Unison.

  1. The investigation that took place thereafter was not one which was remotely effective and the Tribunal finds as a fact that Mr Adshead did not apologise for this event and Mr Adshead should have been dealt with for it, rather than being allowed to leave employment without any form of disciplinary action being taken against him. It is easy for the Tribunal to imagine that if the roles were reversed and Mr Bone had called Mr Adshead an unflattering term which compared him with a tyrant from a different political background the result might have been much more serious. Once again with this dereliction of duty and failure to intervene the Respondents reinforced the message to Unison that they would be permitted to carry on with impunity and that, effectively, it was some form of open season on Mr Bone for the purposes of harassing and bullying him. There is no doubt in the Tribunal's mind that this was done in order not to offend Unison, the Respondents well knowing that the effect of their behaviour would be to deter Mr Bone and/or penalise him from carrying out his Trade Union activities at an appropriate time reinforcing the isolation and stress that he felt.

  1. Mick Hutchison sent a defamatory email on 1 December 2010. Let there be no mistake about it, this is a defamatory email as far as the Tribunal is concerned. Again it tends to make the point, if the point has not been made forcibly enough already, that if employers do not intervene when union officials stray outside of the bounds of what is acceptable conduct and they are employees and are utilising the facilities of the employer, then they enjoy no special protection and must be dealt with with the same vigour that any person would be dealt with in the workforce who is not a trade union official. The email of Mr Hutchison is a direct consequence of the weak and lamentably ineffective conduct of the Respondents' management in not protecting Mr Bone and thereby preventing him or deterring him from taking part in the activities of an independent Trade Union at an appropriate time and also thereby penalising him. It is the direct consequence of their dereliction of duty that leads to the confidence and boldness of Mr Hutchison when he publishes the email to another member of the Respondents' workforce.

51 A robust letter to Mr Hutchison, if it might be regarded as such, by Mrs Anastazio is not an appropriate reaction by an employer who wants to take action so that a member of a trade union will not feel and be deterred from taking part in the activities of his or her independent trade union at an appropriate time. They will feel penalised as a result and Mr Bone has paid the penalty here.

52 It is unsatisfactory of the Respondents to indicate that the measures that they took to obtain an apology from Mr Hutchison even approached the sort of conduct expected of a responsible employer in the modern industrial environment. There was never a meaningful apology, This Tribunal, when this evidence was given, could not help but feel total astonishment that any employer could regard it as a satisfactory apology recognising the misconduct of Mr Hutchison. Whether a grievance or not was issued, this was the signal for the Respondents to take robust and immediate action to crush this obvious harassment in the shell once and for all. The reaction of the Respondents far from being robust was limp and ineffectual in all the circumstances of the case. It is reasonable, therefore, to infer that they were aware that their inadequate conduct was going to deter Mr Bone from taking part in the activities of his independent Trade Union at an appropriate time or act as a means of penalising him.

53 In effect the omissions on the Respondent's part were done in contemplation, the Tribunal infers, of a quiet life on the trade union front which would be achieved by the elimination of the Workers of England Trade Union's influence from the workplace. The employees would see what was meted out with impunity to individuals like Mr Bone who sought to be a member of an unrecognised Trade Union which had earned the wrath of such trade union bodies as Unison. As we have indicated before, the reasons for not taking further action had nothing to do with Mr Bone's race but had everything to do with putting Mr Bone off from his trade union activities and making sure that others were not tempted to join Mr Bone's ranks for fear of the harassment and ostracisation that they would suffer.

63 Accordingly, on the four grounds set out above the Tribunal has unanimously concluded that due to the failure of the Respondents to shoulder its responsibilities in a way consistent with protecting Mr Bone they thereby deterred him from taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so. As we indicated before in our introduction, this is a disturbing case where it is evident that in order to placate an established and influential trade union in the workplace measures were deliberately omitted to ensure that the trade union objected to, and its principal representation was marginalised and placed in a position where its leading figure was socially ostracised and reduced to a figure of derision and contempt. The parties are to indicate that in 28 days of receiving this judgment whether they require remedy hearing or not." [emphasis added]

Discussion

  1. It is apparent from the terms of s 146 and from the decision in Gallacher that it is not enough to show that an employer's actions or inaction had the effect of causing a detriment to the employee in his trade union activities; it must be shown that this was the purpose or main purpose of the employers' conduct. Mr Harbottle, on behalf of Mr Bone, contends that on its proper construction the employment tribunal's judgment amounts to a finding that in respect of the four claims which were upheld, the employers' main purpose was to weaken the influence of the WEU in the workplace. Ms Azib, for the Trust, argues that the employment tribunal held that the purpose of the employers was to try to maintain neutrality as between Unison and the WEU (or, putting it another way, to lead a quiet life), and the finding which the tribunal repeatedly made (for example, in paragraph 52) that the employers were "aware that their inadequate conduct was going to deter Mr Bone from taking part in the activities of his independent trade union" does not satisfy the requirements of s 146.
  1. Mr Harbottle places reliance on three passages in the employment tribunal's decision. The first is paragraph 53 in which they found that the respondent's omissions were done in contemplation of a quiet life on the trade union front "which would be achieved by the elimination of the [WEU]'s influence from the workplace" and that the reasons for not taking further action had everything to do with "putting Mr Bone off from his trade union activities" and making sure others were not tempted to join him. Secondly, in paragraph 63, they held that "in order to placate an established and influential trade union in the workplace measures were deliberately omitted to ensure that the trade union objected to, and its principal representation, was marginalised and placed in a position where its leading figure was socially ostracised and reduced to a figure of derision and contempt". Thirdly, in the heading to the reasoned judgment referred to above these conclusions are in effect summarised.
  1. Ms Azib realistically accepts that paragraphs 53 and 63 amount to a finding by the tribunal that the purpose or main purpose of the employer's omissions was to seek to weaken or marginalise the WEU. She puts her case on perversity in two ways: either the conventional one that there was no evidence to support that conclusion, or in the alternative, that it was inconsistent with findings as to the respondents' purpose or main purpose made elsewhere in the judgment.
  1. The first alternative was the one which found favour with the EAT. They said at paragraph 47:-

"The tribunal wrongly, in our view, came to the conclusion that it was the Respondent's intention to have a quiet life and to eliminate the WEU's influence. As we have noted above, this is the kind of point that should have been included in the schedule. It was not. It was not in any of the evidence and it was not put. In fact the Tribunal simply infers its finding if that is the correct way to put it, that this is the aim to be achieved. In our judgment it was wrong of the Tribunal to do this in the absence of a firm platform of a claim and evidence. We would ourselves like Peter Gibson LJ [in Gallacher] be unwilling to interfere but feel a little more confident in doing so since this is simply an inference. This is indeed a very sinister and firm finding, which is not justified in relation to the pleadings."

  1. It is convenient to deal first with the pleading point which the EAT regarded as important and on which Ms Azib continued to rely before us. It is good practice in complex cases before the employment tribunal, for example discrimination cases, where a large number of separate complaints are made, for a schedule of acts relied on to be agreed. Such a schedule was prepared in this case. We were told that it was the work of an employment judge at an interlocutory hearing. Mr Bone was not legally represented before the employment tribunal. The schedule has a list of incidents relied on, in chronological order, and columns respectively headed "Overview of complaint" and "Overview of Respondent's factual position". In relation, for example, to the email of 5th May 2010, the words used to give an overview of the complaint are that "the Respondent failed to act in relation to this [email] due to the claimant's trade union activities and endorsed the email sent". Nothing is said about purpose. There is no suggestion in the judgment of the employment tribunal that a pleading point was taken in the course of the hearing and if it had been the tribunal would no doubt have dealt with it robustly. The employers were well aware of the case they had to meet, however unfounded or exaggerated they may have thought it to be.
  1. The hearing before the tribunal lasted seven days, in the course of which they dealt with at least 21 separate allegations by Mr Bone and heard from a number of witnesses for the employers. Their judgment runs to 30 pages in which they deal carefully with each complaint. We have (I am glad to say) no notes of the evidence. In those circumstances it seems to me a hopeless task for Ms Azib to contend that there was no evidence on which the tribunal were entitled to make what the EAT described as the "sinister and firm finding" that the employers' purpose was to weaken the influence of the WEU.
  1. I turn to the alternative argument on perversity, which is that the findings under paragraph 53 and 63 are inconsistent with other findings of the tribunal. Under this heading Ms Azib begins with a general point. Mr Bone made 21 complaints. He failed on 17 of them. If the employers really did have what Ms Azib described as the "nefarious" purpose of eliminating the WEU from the workforce then, she submits, surely they could easily have achieved this by taking more drastic action against Mr Bone. (In fact, we were told, he remains to this day both an employee of the Trust and a leading light in the WEU.) For my part I consider that the tribunal's judgment shows a patient and careful understanding of each of the numerous complaints on its merits. The Trust were very largely, but not entirely, successful before the tribunal. But the fact that a more ruthless employer might have tried to get rid of Mr Bone is nothing to the point.
  1. The employers' case was that their purpose was to remain "neutral" as between Unison and the WEU. Ms Azib submitted to us that this was illustrated by a letter of 26 January 2011 in which Mrs Anastazio of the respondents wrote to Mr Hutchison, the author of the 1 December 2010 email that although the Trust did not formally recognise the WEU, it was "mindful of its legal obligations and duties" to that union and would continue to permit WEU officials to attend grievance and disciplinary meetings. In the letter she made it clear that the views expressed in Mr Hutchison's email were not the views of the Trust. Ms Azib submits that the employment tribunal made no finding that Mrs Anastazio was being dishonest or insincere and must therefore be taken to have accepted what was set out in the letter. Similarly, when solicitors acting on behalf of the WEU had written to Mrs Anastazio on 29 October 2010 asking the Trust to publish an agreed statement which, among other things, included the words "the Trust welcomes the fact that the Workers of England Union is open to all of the Trust's employees", the Trust declined to do so. The employment tribunal found at paragraph 38 that a statement by the Trust in this form "would have breached its neutrality"; and similarly at paragraph 48 that the email as worded "would have compromised the employer's neutrality and any form of endorsement of the [WEU] in these circumstances would have been unwise and counterproductive".
  1. I reject the submission that the employment tribunal found at either of these points (or elsewhere in the judgment) that the employers' stance was in truth a neutral one, or that they found that the employers' purpose or main purpose was to maintain neutrality. On the contrary: in relation to the complaint about the 5th May 2010 email the tribunal observed at paragraph 36 that neutrality in this case would have involved treating Unison in the same way as the WEU would have been treated had they issued an overt threat of that nature vilifying another trade union in the workplace. In paragraph 50 they refer to "the weak and lamentably ineffective conduct of the respondent's management in not protecting Mr Bone" and to their "dereliction of duty". In paragraph 52 they describe the respondent's reaction to Mr Hutchison's email as "limp and ineffectual", which is a long way from a finding of neutrality. The references in paragraph 38 and 48 to "neutrality" are made in the context of the Trust's understandable (and lawful) refusal to endorse the WEU as its solicitors had demanded.
  1. The tribunal's main findings, read as a whole, amount in my view to the following:

i) the employers' main purpose in not taking action as they should have done was to eliminate, or at least to marginalise, the influence of Mr Bone and the WEU at the workplace;

ii) they were well aware that this might be the consequence of their inaction;

iii) they were motivated by the desire to placate Unison and thus achieve a quiet life.

I do not consider that points (ii) and (iii) detract from, or are inconsistent with, point (i). Nor do I agree with the criticism Ms Azib makes of the tribunal (which the EAT accepted) that they confused the purpose of the employers with the purpose of Unison, which undoubtedly was to eliminate WEU influence at the workplace. Paragraphs 53 and 63 make it clear that the tribunal appreciated the difference between the purpose of Unison's actions and the purpose of the Trust's inaction.

Other grounds of appeal

  1. The EAT also accepted further criticisms made by Ms Azib of specific findings by the employment tribunal. The EAT agreed with the submission that it was perverse of the tribunal to make an adverse finding in respect of claim 1E (Mr Adshead calling the Claimant "Adolf" on 28 May 2010) since Mr Adshead left the Respondents' employment in July 2010 before the investigation began. But the tribunal found, as they were entitled to do, that Mr Adshead should have been the subject of disciplinary action before he left, and that the investigation which concluded "many months later" was "not remotely effective". I consider that there was no arguable error of law in the tribunal's finding that this was a dereliction of duty on the part of the Trust.
  1. The EAT also found fault with the employment tribunal's findings on claim 1D (Mrs Chalkley saying to Mrs Morgan that the claimant was a "bigot", though not in his presence), noting that the tribunal made no express finding as to Mrs Morgan's purpose or motivation in speaking to Mrs Chalkley informally and doing nothing more. It is true that the tribunal's reasoning on this head of claim is relatively brief. But it is sensible for a court or tribunal dealing with a long list of complaints to devote time at the hearing and space in the judgment to individual items in proportion to their importance. This relatively minor incident did not call for lengthy discussion: two paragraphs totalling 25 lines seem quite enough to me.
  1. The tribunal described Mrs Chalkley's comment as "serious and defamatory" and were critical of the employers in taking the matter no further than Mrs Morgan's informal counselling of Mrs Chalkley. I doubt whether I would myself have found any fault on the part of the employers under this heading, but I am not the tribunal of fact; nor was the EAT. The tribunal's finding that an investigation should have been carried out so as to take action against Mrs Chalkley under the "dignity at work" policy, lest the "infection" could be further spread to the detriment of Mr Bone and the WEU, and that the purpose of not doing so was to weaken the influence of Mr Bone and the WEU, was not erroneous in law.

Conclusion

  1. For these reasons I consider that the employment tribunal were entitled to find, as they did, that in respect of four occasions the Trust subjected Mr Bone to detriment by their deliberate failure to act, and did so for the main purpose of preventing him or deterring him from taking part in the activities of the WEU. I would therefore allow the appeal, set aside the decision of the EAT, and restore the judgment of the employment tribunal.

Lord Justice Floyd:

  1. I agree.

Lord Justice Laws:

  1. I also agree.

Published: 08/02/2016 22:17

message