Critical Remark was Wrong
Labour & European Law Review Weekly issue 110 - April 2006 12 April 2006
Anyone elected as a trade union representative of a recognised trade union has certain legal rights. For instance, the right to time off for their trade union activities and the right not to be penalised for carrying them out.
In Doherty -v- British Midlands Airways Ltd (2006, IRLR 90), the employment appeal tribunal (EAT) said that the tribunal misdirected itself when it made findings about issues that had not been raised during the hearing.
Ms Doherty’s union, the GMB, instructed Thompsons to act on her behalf.
What were the basic facts?
Ms Doherty had worked for British Midlands as a ticket agent for seven years when she was elected the GMB local representative in May 2000.
She brought two claims against the company, which were heard in May 2002 and April 2003. In the first, she argued that the company was trying to stop her from carrying out her union activities, and she was awarded just over £2,000.
In the second, she claimed that the company was penalising her for carrying out her trade union duties, following a letter from her manager in which he told her that she could not have time away from work for her union activities without his “express permission”. He also suspended all her other union time. She was awarded nearly £6,000.
Following this decision, the company and the union asked ACAS to get involved, but Ms Doherty was not involved in any of the subsequent meetings.
In July 2003, she claimed that the “last straw” was a manager telling a GMB member that he could not speak to her unless it was outside working time.
She felt that she was being bullied by the company, which was placing obstacles in her way at every chance. She resigned and claimed constructive dismissal.
What did the tribunal decide?
The tribunal said that, although it could identify one fundamental breach of her contract by the company, it did not think that was the reason for her resignation.
Instead, it said that she resigned because she was “furious and her anger increased over the following weeks as the extent of the conciliation attempts and her complete exclusion from them became apparent.”
It said that when she realised “her ambitions to advance in the trade union were likely to be thwarted”, she resigned.
Ms Doherty appealed against the decision, and the company cross-appealed that it had not fundamentally breached her contract.
What did the EAT decide?
The EAT said that the tribunal was wrong to decide that Ms Doherty had not been constructively dismissed.
First of all, it said that the facts did not bear out the tribunal’s criticism of Ms Doherty or her supposed ambitions within the union.
As the company had not raised any of these points itself, Ms Doherty had not been asked about them at the tribunal.
The EAT said that, if it was going to criticise her in its judgement, the tribunal should have flagged the issues up in advance and given her the chance to answer them.
The EAT also criticised the tribunal for not fully dealing with the series of cumulative acts that she had relied on to substantiate her claim of constructive dismissal. As it had not done that, the EAT remitted the issue to another tribunal for her case to be re-heard.
Finally, it said that the tribunal was wrong to decide that the company had been guilty of a fundamental breach of contract by the employers. Their cross-appeal would, therefore, be allowed.