Fire Brigades Union v Embery [2023] EAT 51

Appeal against a finding that the Respondent had unfairly dismissed the Claimant. Appeal allowed.

The Claimant was, and still is, employed by London Fire Brigade (LFB) and was on full-time release in order to perform his duties as an elected official of the Fire Brigades Union (FBU). His work for the FBU ended in July 2019, when he received a ban on holding office as an EC member as a disciplinary sanction for a breach of the union’s rules. The Claimant claimed unfair dismissal and named the FBU as his employer. The ET found that at all times when the Claimant worked full-time for FBU, the LFB paid him a full-time salary, NI contributions and pension contributions and was responsible for his entitlement to holiday pay and sick pay. By the separate agreement between the LFB and the FBU, the FBU reimbursed to the LFB the cost of the salaries that it paid to those elected officials who were released to carry out FBU functions. The Claimant's claim succeeded and the FBU appealed on the basis that it was not the employer.

The EAT allowed the appeal. The ET did not give sufficient reasons to comply with rule 62(3) of the ET Rules of Procedure, because it did not record the FBU’s submission that a person generally cannot be employed by two different employers to carry out the same work at the same time, or refer to any of the case law cited on that issue, or state whether the submission was accepted or rejected and give reasons for that conclusion. The ET was wrong to find that the Claimant, an employee of the LFB who was on full-time release in order to perform his duties as an elected official of the FBU, was employed by the FBU. Employment by the FBU was not compatible with employment by his main employer. The ET did not sufficiently explain its finding that sums paid by the FBU to the Claimant were in the nature of remuneration for services.

Published: 12/05/2023 10:11

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