The claimant, a midwife, was the trade union representative for her branch. Under a recognition agreement the respondent would permit accredited representatives such time off for trade union activities as was reasonable. The claimant was unable to reach agreement with her manager on the management issue of the time off to be allowed, despite having several discussions. The claimant’s manager requested further meetings, but the claimant did not attend and no agreement was reached. The claimant later attended a union meeting during working hours without the respondent’s prior permission and was given a final written warning for the charge of misconduct. A few months later the claimant was found to be working for another Trust whilst off sick from the respondent, and she had not informed the respondent as required. Disciplinary proceedings followed, and bearing in mind the final written warning on her record, the respondent decided to dismiss her. The claimant claimed that the final written warning was not, as the respondent argued, imposed because she refused to meet with her manager to discuss management issues. Rather, the warning was unlawful detriment under s146 because it was imposed as a penalty for attending a trade union meeting, and as such it was impermissible to take it into account in reaching a subsequent decision to dismiss her for a conduct reason.

The Court of Appeal upheld the judgment of the ET. There was no error of law in the ET’s judgment rejecting (a) the claim that the final written warning was unlawfully imposed contrary to s.146 as a penalty for the claimant’s trade union activities and (b) the contention that the warning could not properly be taken into account in the subsequent decision of the Trust to dismiss her for a conduct reason.

_____________________

Neutral Citation Number: [2011] EWCA Civ 924

Case No: A2/2010/1114

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

THE HON MRS JUSTICE SLADE

UKEAT/O338/09/RN

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/07/2011

Before :

LORD JUSTICE MUMMERY

**LORD JUSTICE LEVESON

**and

LORD JUSTICE RIMER

• - - - - - - - - - - - - - - - - - - - -

Between :

MS ELSIE GAYLE (Appellant)

- and -

SANDWELL & WEST BIRMINGHAM HOSPITALS NHS TRUST (Respondent)

• - - - - - - - - - - - - - - - - - - - -

MR BECKETT BEDFORD (instructed by Huggins & Lewis Foskett) for the Appellant

MR TIM SHEPPARD (instructed by Mills & Reeve LLP) for the Respondent

Hearing date: 25th May 2011

• - - - - - - - - - - - - - - - - - - - -

Judgment

Lord Justice Mummery:

Introduction

1. Part III of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) covers workers' rights to union membership and activities and actions short of dismissal. The rights include protection from detriment on grounds related to union membership or activities.

1. In this sensitive area of employment relations s.146 provides that:-

"(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) [this relates to being or seeking to become a union member, or being penalised for doing so, which does not arise in this case]

(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…"

1. The expression "an appropriate time" means a time outside the worker's working hours, or a time within his working hours, at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union: s.146(2). On a worker's complaint under s. 146 it is for the employer to show what was the sole or main purpose for which he acted or failed to act: s.148(1).

1. The detriment alleged in this case was the imposition of a final written warning in disciplinary proceedings brought by the employer against the claimant worker. The claimant says that the sole or main purpose of the warning was to penalise her for taking part in trade union activities within her working hours. She says that final written warning had a knock on effect because the employer wrongly took it into account in further disciplinary proceedings, which were based on subsequent misconduct and led to a dismissal that was unfair.

1. This appeal is from an order made by the Employment Appeal Tribunal (EAT) dated 16 April 2010. The EAT dismissed, save for the limited grounds of a victimisation claim contrary to the Race Relations Act 1976, an appeal by Ms Elsie Gayle against the decision of the Employment Tribunal (ET) promulgated on 11 May 2009. The ET unanimously dismissed her claims of detriment on grounds relating to trade union activities along with other claims for race discrimination, protected disclosure and unfair dismissal.

1. Permission to appeal was granted by Lady Justice Smith on 13 January 2011. The points taken on behalf of Ms Gayle are that (a) the ET applied the wrong legal test when it rejected her claim under s.146 and (b) that legal error infected the decision to dismiss her because account was wrongly taken of a final written warning imposed for a prohibited purpose. The ET erred in law by proceeding on the basis that it could only go behind the validity of a final written warning, if it was satisfied by the worker that the employer had given it in bad faith.

1. In its judgment the ET cited two unfair dismissal authorities for the proposition that bad faith had to be proved to counter the effect of the written warning. Neither side had referred to the authorities at the ET hearing, because bad faith was not an issue in either the detriment claim or the unfair dismissal claim. The issue in the detriment claim was whether the warning fell within s.146. If it did, the warning was contrary to statute, without the need to prove bad faith, and the dismissal decision, which gave rise to the unfair dismissal claim, could not properly take account of a contaminated final warning.

1. In short, it is submitted on behalf of Ms Gayle that the ET ought to have held that (a) the warning was detriment within s.146, because it was imposed on grounds related to Ms Gayle's trade union activities and (b) in those circumstances it was impermissible and unfair for the decision to dismiss her to take the warning into account.

Procedural efficiency and justice

1. Before I turn to the detailed submissions on Ms Gayle's appeal I should address the topic of procedural justice and efficiency in the ETs. In the final paragraph of the EAT judgment given by Mrs Justice Slade it is said that:-

"33.It is a matter of great regret that so much public money and time has been spent on this matter."

1. I agree. Similar comments have been made in recent public discussions and consultations about the workings of the ET system generally. Some of the criticisms are justified, others need correction and all of them must be seen in their proper perspective.

1. The ETs are under enormous pressure in these difficult economic times. Their caseload has increased by over 50% in one year, which comes as no surprise at a time of high unemployment. The cases have become more complex with the legislative expansion of employment protection since the tribunal system was first established. They take longer to process. It is not proper for me to comment on proposed reforms of substantive employment law. That is a controversial policy area for public debate and Parliamentary action. Procedural efficiency and justice are, however, of direct concern to the judiciary: the courts and the tribunals are equipped with wide discretionary powers to ensure that cases are dealt with justly.

1. One area of debate is about cases of little or no merit, but considerable nuisance value. All are agreed that they should be cleared out of the system as soon as possible. They should not be allowed to take up a disproportionate amount of time in the ET or cause the other party to incur irrecoverable legal costs and loss of valuable working time.

1. As for procedural justice and efficiency generally I would make the following points with particular reference to the EAT's comments on what happened in this case.

1. First, Ms Gayle's litigation has now reached the third level of decision. That is not typical: most employment disputes do not even go one round, because they are settled through the good sense of the parties or thanks to the good offices of ACAS. When they are contested the vast majority of cases only go one round.

1. Secondly, this case is based on events of nearly 5 years ago. Most cases are in fact finally decided at the level of the ET within months, not years, of the relevant events.

1. Thirdly, the hearing of this case in the ET lasted nearly three weeks at the end of 2008 and beginning of 2009. With hindsight it is easy for a person who was not involved in the case to say that a hearing should have been shorter. It is much more difficult to achieve short hearings in practice when one or both parties are determined to take every point of law, evidence and procedure. My point is that most cases in the ET take only a day or two, not weeks as here.

1. Fourthly, the EAT heard the appeal a year later. Most ET decisions are not appealed. Appeals, which are limited to points of law, are as of right, though the preliminary procedure devised in the EAT and streamlined over the years usually sifts out the hopeless points at an early stage and without a contested hearing.

1. Fifthly, an appeal to this court on a point of law may only be brought with permission. A year passed before the appeal was heard in this court. The appeal has to compete for a place in the list with very many other appeals on every kind of case from the whole of England and Wales. Rightly or wrongly many other appeals are treated as having greater priority and there are not enough judges in this court to hear and decide them all expeditiously. The important point is that most employment cases never reach a full court hearing. The hopeless ones are sifted out by a single Lord Justice at the permission stage. The unusual feature of this appeal is that this hearing is the third time in which the case has been judicially considered in this court: permission was refused on a paper application; at the oral hearing of the renewed application via video-link permission to appeal was granted, though coupled with a caution from Lady Justice Smith about the outcome, when she said "Mr Bedford may have a point. I am not convinced that in the end the point will succeed…"; and then there was the hearing of the appeal for a morning before the full court. The appeal focused on one point only based on the significance of a sentence or two in a single, very long, paragraph in an ET judgment of 97 paragraphs.

1. Sixthly, in every case the parties, who both think that they have a good case, are entitled to expect that their case will be dealt with justly. That takes time, care and patience, as well as considerable practical experience and specialist knowledge. It takes much longer than most people begin to appreciate to perform properly the most vital function in the whole civil justice and tribunal system. Establishing the facts soundly in every case at first instance is, in practice, of far greater practical importance than the limited corrective powers exercisable by the appellate courts in the relatively small proportion of cases that reach them. In the ET the issues have to be identified. In a case like this a mass of conflicting evidence is produced. It has to be assimilated, organised, analysed and assessed by the ET. There were nearly a dozen witnesses in this case. The ET then had to listen to competing legal arguments and detailed submissions from the parties. It had to consider and write up the decision with its detailed findings and reasoned conclusions.

1. Seventhly, as for those who complain about the time taken and the legal costs and other expenses and losses incurred, I think that they would want the hearings to be conducted in the interests of justice to both sides. I have seen very few constructive suggestions for practical improvements. If workers are given rights, there must be properly qualified, impartial and independent tribunals to adjudicate on them in accordance with a fair procedure. If workers are not given the necessary means for the just adjudication of their claims, procedures of a more rough and ready non-judicial kind may be used. The alternative procedures would probably not be impartial, independent or just, and are unlikely to do much for public order, social harmony or national prosperity.

1. Eighthly, the ETs continue to make good progress in managing cases efficiently and justly to ensure that the oral hearing concentrates on what really matters without wasting time and money on what does not matter or is only marginally relevant. If the ETs are firm and fair in their management of cases pre-hearing and in the conduct of the hearing the EAT and this court should, wherever legally possible, back up their case management decisions and rulings.

1. Lastly, the parties and their advisers themselves have duties to discharge personal and professional responsibilities in the preparation and presentation of the cases in the tribunals. They must keep a proper sense of proportion in the issues raised for decision, in the selection of legal points worth taking and of relevance in the quantity and quality of the evidence that they need to call. Contrary to the way that some observers see it and the way that some participants do it, justice in the tribunals (and in the courts) is not a war, or a battle, or a game. It is not a talent contest for spotting the winner and awarding a prize: it is (or certainly should be) a reasonable, sensible and civilised way of sorting out disputes that the parties have unfortunately been unable to sort out themselves. In my view, some (though by no means the majority) of the shortcomings identified by critics are not in the system itself, or in the tribunals, or in their practice and procedure, but in the attitudes and approaches of some litigants to the process of reasonable resolution of conflict.

Background facts

1. Ms Gayle, who was born in Jamaica, is black and of mixed race and is a very good midwife. She was employed by the Trust from April 2002 until her dismissal in April 2007. During her employment she also undertook work as a midwife at the St Paul's Community Development Trust.

1. She was a member of the Royal College of Midwives and was its local representative at her workplace. In 2006 she became a member of Unison. She was appointed as its branch representative. She needed time off for trade union activities. Under a recognition agreement the Trust would permit accredited representatives such time off for trade union activities as was reasonable. Time off would not be unreasonably withheld, but would be subject to the needs of the service. Ms Gayle was unable to reach agreement with her manager, Mrs Eva Parchment, on the management issue of the time off to be allowed by the Trust for union activities. They had discussions in which agreement was not reached and Ms Parchment requested further meetings, but Ms Gayle did not attend and no agreement was reached about the governing principles for time off.

1. On 2 June 2006 Ms Gayle attended a union meeting within working hours without the Trust's prior agreement or a proper permission. The permission obtained from Ms Gayle's line manager was not believed by Ms Parchment to be a proper permission. The Trust considered that Ms Gayle was guilty of misconduct in refusing to co-operate with Mrs Eva Parchment's management request to discuss the management issue of resolving the process for requesting time off for trade union activities. In disciplinary proceedings Ms Gayle was found guilty of the charge of misconduct. A final written warning was imposed on 21 November 2006. It remained on her record for a year.

1. In November 2006 Ms Gayle went off work sick. She was away until March 2007 drawing statutory sick pay. While she was away she continued to work for St Paul's Community Development Trust, but she did not notify the Trust as the Sickness Absence Scheme required. In February 2007 she began proceedings against the Trust for race discrimination and victimisation. She challenged the final written warning on the sole basis that it was contrary to s.146.

1. After her return to work in March 2007 the Trust took disciplinary proceedings against Ms Gayle for breaching the rules of the Sickness Absence Procedure by working during sickness absence without notifying the Trust. An allegation of fraud was dismissed, but a finding of misconduct was made. Bearing in mind the final written warning on her record, the Trust decided to dismiss her.

1. Ms Gayle then commenced proceedings in the ET for ordinary unfair dismissal, racially discriminatory dismissal, victimisation on account of trade union activities and of having started race discrimination proceedings and also on the grounds that she had made a protected disclosure.

1. The two sets of proceedings were consolidated and heard together.

Employment Tribunal

1. The ET found against Ms Gayle on all issues. The detailed judgment ran to 97 paragraphs covering 43 pages.

1. The ET found as a fact that Mrs Eva Parchment informed Ms Gayle that she wished to speak to her about "time out" of the service for her union activities. Ms Gayle said that she would not discuss union activities with her, only "management issues." Ms Parchment made several attempts to have a meeting with Ms Gayle to discuss time out issues. She advised Ms Gayle that, if she failed to discuss time out issues with her, she would be suspended, because she had refused to comply with a reasonable management request to meet to discuss time away from the workplace for union activities.

1. In dealing with the claim in relation to the final written warning the ET said in a key paragraph in the judgment:

"95. We turn next to the claim raised by the claimant that she was subjected to a detriment on the grounds of her trade union activity contrary to Section 146 of TULR (C) A by being subjected to the disciplinary procedure and being given a final written warning, and also because she was dismissed. In the latter regard Mr Bedford on behalf of the claimant stated that the claimant was no longer relying on section 152 of TULR(C) A as a separate issue on that matter and we have referred to this above. In regard to the alleged exposure to the disciplinary procedure and the final written warning, whilst there was a large amount of evidence surrounding the ultimate decision to impose this sanction, the claimant herself in the notes recorded by her representative's nominee at the disciplinary hearing, accepts, as set out in the facts above, that Eva Parchment wanted to discuss with her "a management issue." That management issue was agreeing time out for trade union activities on a one-to-one basis and even if the panel did rely on the fact that Ms Parchment did not believe that the claimant had obtained proper permission from her to attend the meeting on the morning of 2 June 2006, this again, in our view, was in itself a management issue and was not to do with her trade union activities per se. It was merely agreeing the management issue of time out to attend those matters which was something that needed to be done because of the impact of the absence from the claimant from the clinical working environment. The claimant herself accepted this position as recorded above. Whilst, as was submitted by Mr Sheppard the evidence supports the fact that the claimant had failed to obtain appropriate consent from Eva Parchment to attend the meeting in particular on 2 June under the ad hoc arrangement and that therefore she had not attended the meeting at the "appropriate time" as defined by TULR(C) A, there was in any event sufficient evidence to support the decisions made by the respondent both to suspend and ultimately place the claimant on a final written warning in line with the disciplinary process. However unreasonable the claimant may feel it was that she was subjected to a final written warning, (one that ultimately played a significant part in the decision to dismiss her), it is well established law as demonstrated from the cases of Tower Hamlets v. Anthony (1989) IRLR 394 CA and Stein v. Associated Dairies Limited (1982) IRLR 447 EAT that unless a final written warning has been made in "bad faith" and there are no prima facie grounds for following that procedure, the tribunal has no power to interfere with the same. We do not conclude that there are any grounds to substantiate that this final warning was made in bad faith. We conclude therefore that this was a sanction that was within the power of the respondent to impose under the disciplinary process and that a failure to comply with a management instruction was a potential gross misconduct offence. The final written warning therefore was a live issue that was presented before the panel that decided to dismiss her. We do not conclude therefore that she was subjected to the disciplinary process or the final written warning because of or related to her trade union activities. The decision to impose the final written warning was because the claimant had failed to comply with a management request to discuss management issues i.e. the resolution of a process of identifying time outs for her to attend her trade union activities in order that the clinic could be managed and run properly…"

1. The ET found that the ultimate decision to dismiss was in part because of the final written warning, which was a matter that the Trust was entitled to take into account. The ET considered that it was a fair dismissal for lack of trust and confidence, because of her conduct, including the final written warning based on her failure to communicate with her manager. That failure was repeated when she had not notified the Trust of her work for the St Paul's Community while absent on sickness leave from the Trust. The decision to dismiss was a reasonable response to her conduct.

1. In the final paragraph of its detailed judgment the ET said:-

"97. The claimant, in our view, undoubtedly worked hard in her efforts to support her colleagues and fellow trade union members. Her record as a clinician is exemplary. Her error was failing to communicate fully and meet with the respondent's management in accordance with the agreed written procedures that we were taken to both in depth and in detail in the hearing and these were ultimately the reasons that led to her dismissal."

Employment Appeal Tribunal

1. On the s. 146 point the EAT held that there was no misdirection of law by the ET. It dismissed the appeal against the ET's rejection of that claim.

1. The EAT pointed out that the ET had made clear findings of fact as to the reason for the final written warning: it was not to do with Ms Gayle's trade union activities, but was given for management reasons: she had failed to comply with a management request to discuss the matter of "time outs", as time off for trade union activities was called.

1. The EAT also pointed out that, since the final warning was relied on by the Trust in its decision to dismiss, it was unsurprising that the ET mentioned the authorities on unfair dismissal about not being allowed, in the absence of bad faith, to go behind a final written warning . The point made on those cases did not affect the validity of the findings of fact about the reason for the final written warning.

Appellant's submissions

1. Mr Becket Bedford appearing for Ms Gayle made forceful submissions. He reminded the court of the fact that the ET heard two sets of proceedings: the first set was purely about subjection to the Trust's disciplinary procedure contrary to s.146 and resulting in the imposition of the final written warning; the second set about the reliance of the Trust on it in reaching the decision to dismiss for Ms Gayle's alleged subsequent misconduct.

1. His primary proposition was that the ET's citation of the unfair dismissal authorities in paragraph 95 of its judgment was a clear indication that it had applied the wrong legal test. Those authorities on unfair dismissal did not bear on Ms Gayle's claim for unlawful detriment for trade union activities. On such a claim the ET had to look behind the final written warning in order to determine whether it was imposed for a purpose contrary to s146(1)(b). If the final written warning was imposed for a reason that was contrary to s.146, Ms Gayle succeeded in her first proceedings. She was also entitled to go behind the warning in the subsequent unfair dismissal proceedings, because the Trust was not allowed to take into account, in reaching the decision to dismiss, a final written warning that had been unlawfully imposed.

1. The ET erred in law in declining to interfere with and set aside the imposition of the final written warning at the end of the first disciplinary process. It should have done so on the grounds that its imposition was unlawful under s.146. Instead, the ET asked simply whether the action was taken by the Trust was in the belief that it related to a "management issue" and on the view that it had no power to interfere with the final written warning, unless it was made in bad faith. The ET wrongly held that there had been no breach of s. 146 as there was no bad faith in its imposition. The EAT erred in not finding that error.

1. In brief, Ms Gayle's case is that the final written warning was not, as the Trust argued and the ET and the EAT accepted, imposed because she refused to meet Mrs Parchment on a one-to-one basis to discuss management issues. The warning was unlawful detriment under s. 146 because it was imposed as a penalty for attending a trade union meeting on 2 June 2006 and it was impermissible to take it into account in reaching the subsequent decision to dismiss her for a conduct reason. The ET misdirected itself in holding that the final written warning was not and could not be detriment on grounds related to trade union activities unless satisfied that test of having been made in bad faith.

Discussion and conclusion

1. In my view, this appeal raises a very short point indeed. It turns on the key findings and reasoning of the ET in a detailed and careful judgment which must be read as a whole, not sentence by sentence.

1. The issue before the ET was whether, by being subjected to the disciplinary procedure and being given a final written warning, Ms Gayle suffered detriment on the grounds of trade union activities contrary to s. 146. That was an issue of fact on which the ET made a firm finding in paragraph 95 (see paragraph 32 above): the final written warning was imposed as a result of Mrs Gayle's failure to comply with a management instruction to discuss management issues (i.e. resolution of the process of identifying time out to attend to her trade union activities.) It was not imposed for the sole or main purpose of penalising her for trade union activities in attending a trade union meeting in work hours on 2 June 2006.

1. In the light of that finding the ET was entitled in law to dismiss her s.146 claim. It was also entitled to hold that the Trust properly took account of the final written warning in the decision to dismiss following subsequent misconduct. The two authorities on final written warnings in unfair dismissal cases were cited by the ET in the context of the relevance of a final written warning to an unfair dismissal claim. The general principle of law established by those cases is clear and correct. There was no of error of law in citing the cases in paragraph 95 of its judgment at a point when the ET had already found on the facts that there was no possible reason for disregarding the final warning in reaching the decision to dismiss. The warning had been lawfully imposed without any breach of Ms Gayle's rights under s. 146.

1. The citation of the authorities, which Mr Sheppard described as "a belt and braces" approach by the ET, had no effect on the prior finding about the purpose of the warning or on its validity. Indeed, it could have been omitted altogether from the ET's judgment without any adverse effect on the ET's conclusions on the purpose of issuing the final written warning. A final written warning could be ignored if it was given in bad faith, but that did not arise on the facts, any more than infringement of the right to engage in trade union activities. Bad faith was not alleged and so the application of the principle laid down in the authorities did not in fact arise.

Result

1. I would dismiss the appeal.

1. In summary, there was no error of law in the ET's judgment rejecting (a) the claim that the final written warning was unlawfully imposed contrary to s.146 as a penalty for Ms Gayle's trade union activities and (b) the contention that the warning could not properly be taken into account in the subsequent decision of the Trust to dismiss her for a conduct reason.

Lord Justice Leveson:

1. I agree.

Lord Justice Rimer:

1. I also agree.