Trade union dismissal
Labour & European Law Review Weekly Issue 261 22 March 2012
Although it is illegal to dismiss someone for their trade union activities, it is notoriously hard to prove in a Tribunal. However, the Employment Appeal Tribunal (EAT) has said in Chorley Borough Council v Andrews that Tribunals are entitled to draw inferences from the evidence and “come to common sense conclusions based on facts”.
Mr Andrews, the council’s market manager, was also the local UNISON branch secretary. He had been involved in helping a member bring a Tribunal claim against a senior manager, Mrs Meeks, and had also been active in organising opposition to proposals to outsource some council services.
On 27 February 2009, he was told that his job was to disappear at a meeting with Mrs Meeks and two others. Mr Andrews alleged she said at the meeting: “There’s nothing in it for you”.
He was interviewed for a new post on 28 May but, unlike the other candidate (who was also allowed to put his presentation in late), was not given time off to prepare a powerpoint presentation. Mr Andrews did not get the job and was not given an opportunity to apply for another job that he could have done.
The Tribunal said that, although the other candidate probably would have been appointed to the new post because of his experience and qualifications, it still found that the dismissal was unfair because of Mr Andrews’ trade union activities.
It was deeply unimpressed by Mrs Meeks’ evidence, who, in response to most questions, either could not remember or said she had not been involved. The only thing she could remember was that she had not said: “there’s nothing in it for you”.
It also noted a number of inconsistencies between her oral evidence and written statement. And it expressed concern that witnesses, who could have corroborated her evidence, were not called.
It criticised the council for not telling Mr Andrews about the other job and for the way in which the appeals procedure was carried out.
The council appealed against the finding that he had been dismissed for his trade union activities.
But the EAT upheld the Tribunal’s decision, saying it was open to the Tribunal to make the inference from the available evidence.
The evidence in this case included “the way in which the interviews were conducted, the fact that Mrs Meek was found to be an evasive witness, the fact the Tribunal accepted that she had made the remark “there’s nothing in it for you”, the fact of the poor record keeping, the fact that the Claimant was not offered the opportunity to be considered for the Market Co-ordinator’s position, the fact the appeal process was not sufficiently probing ... the fact that the Claimant had caused problems for the management in connection with outsourcing the markets ...”.
It was, said the EAT, up to the Tribunal to draw inferences from the evidence and “come to common sense conclusions based on facts”. It said there was a “difference between drawing an inference and speculating. One is mere guessing. The other is bringing to the knowledge of the world, and robust common sense, an inference from particular facts”.
It therefore dismissed the appeal.