Law Report: No trade unionism deterrence: The Department of Transport v Gallacher - Court of Appeal (Lord Justice Neill, Lord Justice Evans and Lord Justice Peter Gibson), 10 March 1994

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An employer's decision that an employee, a trade union official who had spent all his time on trade union activities, should not be promoted because he lacked managerial experience had not taken action for the purpose of deterring the employee from continuing with his union activities.

The Court of Appeal dismissed an appeal by John Gallacher and dismissed his complaint against the Department of Transport.

Mr Gallacher, a higher executive officer in the department, was also group assistant secretary of the National Union of Civil and Public Servants between 1986 and 1991, when he spent the whole of his time on union duties.

In 1990 his application for promotion to senior executive officer within the department was unsuccessful.

The interview board, when giving Mr Gallacher guidance on how he might become successful, said that although he had had an excellent interview, the board had serious doubts about his managerial ability and his lack of experience at managerial level.

An industrial tribunal decided that his complaint, that action had been taken against him by his employer for the purpose of deterring him from taking part in trade union activity, contrary to section 23(1)(b) of the Employment Protection (Consolidation) Act 1978, was well founded.

The Employment Appeal Tribunal allowed the appeal by the Department of Transport.

Cherie Booth (Robin Thompson & Partners) for Mr Gallacher; David Pannick QC (Treasury Solicitor) for the Department of Transport.

LORD JUSTICE NEILL said that the industrial tribunal did not distinguish between the 'effect' of the board's guidance and the 'purpose' for which it was given. In some circumstances, the concept of 'purpose' might be relevant both to intention and motive.

It was usually dangerous to use 'intent' and 'purpose' as though they were interchangeable. It was important to adhere strictly to the statutory words.

Was the finding that Mr Gallacher should not be promoted and the guidance that to be successful he needed more managerial experience made or given 'for the purpose of' deterring him from continuing with his full-time trade union activities?

'For the purpose of' in this context connoted an object which the employer desired or sought to achieve.

The 'purpose' envisaged in section 23(1) was an illegitimate purpose which contravened the statute.

In present case, the purpose of the board's recommendation was to ensure that only those with sufficient managerial experience were passed fit for promotion. The guidance was to explain what choices were available to him. The word 'purpose' was misconstrued by the industrial tribunal.

Further, no industrial tribunal could find on the facts that any action taken by the department was 'for the purpose' of deterring Mr Gallacher from continuing with his union activities. His complaint would be dismissed.

LORD JUSTICE PETER GIBSON, agreeing, said that the board's guidance could not fairly be inferred to have been made for the purpose of deterring Mr Gallacher.

He could take or leave the advice, as he wished.

It would be absurd were section 23 to prohibit the making of reasonable comments by the board, providing information to an employee, and Parliament could not have intended that employers were obliged to remain silent and not make helpful comments to indicate how an unsuccessful candidate might, if he chose, become successful.