FW Farnsworth Ltd v McCoid [1999] IRLR

In a welcome decision, the Court of Appeal finds that an employer who derecognised a shop steward took action short of dismissal against him as an individual, rather than on a collective basis. The employer's actions therefore fell within the scope of the anti-victimisation provisions contained in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and became entitled to legal protection.

In F W Farnsworth Ltd v McCoid (Court of Appeal: March 3 1999), the company sought to derecognise Mr McCoid, an individual TGWU shop steward, on account of his conduct.

Appropriate procedures were followed and the shop steward was duly derecognised.

Mr McCoid began Employment Tribunal proceedings, claiming that the Company had victimised him in contravention of Section 146. Section 146 provides that an employee has the right not to have action short of dismissal taken against her or him as an individual for the purpose of preventing or deterring her or him from taking part in union activities or penalising her or him for doing so. One of the areas of difficulty with this notoriously problematic section is whether or not action is taken against an employee in an individual capacity or whether the action is collective in nature.

On the preliminary issue as to whether the action was either collective or individual in nature, the Tribunal found in favour of Mr McCoid. The EAT agreed. The employer appealed.

The Court of Appeal also found for Mr McCoid, saying that it was important to take fully into account the views of the Tribunal Chairman, who would have the necessary knowledge and experience to apply the law to situations such as this. The Court of Appeal also noted that no action was taken against the trade union as an organisation - the action against Mr McCoid could not therefore be categorised as collateral damage, as CNN might say. The reasons for the employer's actions related solely to the individual concerned, and if he could not avail himself of section 146, then his employers would be able to victimise him, and damage his credibility, at will.

This is very encouraging. For the last decade, workers trying to bring claims under section 146 have been stuck with the decision in NCB v Ridgway & anor, where the Court of Appeal found that, to come within section 146, workers had to be affected otherwise than in their capacity as a union member or officer. The Court of Appeal was prepared to distinguish Ridgway from Mr McCoid's case, saying that, in Ridgway, the Court had been considering a different situation Ð one where the employer took action against all members of the union. It should therefore be easier to persuade Tribunals that action is taken against a worker as an individual in future cases. Mr McCoid's case will now go forward to a full hearing of his claim.

Trade union dismissals

Pittaway v Street to Street Limited (EAT/1467/98 July 6 1999 unreported)

Dismissal on the grounds of trade union membership is governed by the Trade Union and Labour Relations (Consolidation) Act 1992. There is no qualifying period of employment required before a claim is brought. Successful cases are rare, but where a tribunal finds that a dismissal is due to trade union activities or membership then, if reinstatement or re-employment is not ordered, compensation is payable under three headings.

Firstly, a minimum basic award regardless of service of £2,900, secondly a compensatory award calculated in the same way as a compensatory award in other unfair dismissal cases. In addition a Special Award is also payable where the employee requests reinstatement and re-engagement. The Special Award is a punitive award calculated on a formula of a week's pay multiplied by 104 up to a maximum of £29,000.

The Special Award can be increased where there is an Order for reinstatement or reengagement and the Order is not complied with, unless the employer is able to satisfy the Tribunal that it was not reasonably practicable to comply with the Order. Mr Pittaway was dismissed by Street to Street Ltd. An Employment Tribunal held his dismissal was for trade union activities The Tribunal then reconvened to deal with remedy in July 1998. They decided that Mr Pittaway was not entitled to a Special Award because he had not requested reinstatement or reengagement because he had ticked the "compensation only" box on his original IT1. In doing so the Tribunal referred to section 157 of TULR(C)A 1992 in Butterworth's Employment Law Handbook, the standard text available to Employment Tribunals. Section 157 as printed in Butterworth's reads:

"(1) where an industrial tribunal makes an award of compensation for unfair dismissal in a case where the dismissal is unfair [for trade union reasons] then, unless -
(a)the complaint does not request the tribunal to make an order for reinstatement or reengagement...the award shall include a special award calculated in accordance with section 158".

The tribunal found that the word "complaint" meant the IT1 and as Mr Pittaway had not requested reinstatement or reengagement in his IT1 he was not entitled to a Special Award even though he sought to amend his remedy request after the first hearing. Mr Pittaway appealed to the EAT supported by the GMB, which instructed Thompsons to act for him.

In fact the legislation as printed in Butterworths was wrong and the word "complaint" should read "complainant". The Tribunal in this case also did not refer to section 112 of the Employment Rights Act 1996 which gives a tribunal the duty to explain to a successful applicant that it may make a reinstatement/reengagement order and to ask the applicant whether he wishes it to do so.

The EAT on 6 July held that the legislation was wrongly printed both in Butterworth's and Harveys. They went on to stress to Employment Tribunals the importance of following the scheme of the legislation in relation to remedy starting with section 112 ERA 1996 and explain to the successful applicant the orders it can make including reinstatement and reengagement. They decided that requesting reinstatement or reengagement after the tribunal's decision on liability was sufficient to trigger the special award and therefore substituted their decision for that of the Employment Tribunal and ordered a special award for Mr Pittaway of £20,800.