An employee who was employed and paid as a technical services operator, but who by arrangement with his employer spent half his working time as a packaging operator and the other half on trade-union activities as a senior shop steward, had not been unfairly selected for redundancy by reason of his trade-union activities, contrary to sections 58 and 59 of the Employment Protection (Consolidation) Act 1978, even though both the other technical services operators and the other packaging operators were retained: the employee's position, taken as a whole, was comparable with none of theirs. Although, in making the comparison, his trade-union activities had to be ignored, it was not right also to ignore the fact that, to enable him to undertake such activities, he had been given work other than that for which he was nominally employed.
The Court of Appeal dismissed an appeal by the employee, Michael O'Dea, and affirmed the decision of the Employment Appeal Tribunal, on 14 February 1994, dismissing his appeal from an industrial tribunal in Bristol, which on 4 February 1992 had dismissed his complaint that he had been unfairly selected for redundancy by his employer, ISC Chemicals Ltd, by reason of his trade-union activities and that his dismissal was therefore unfair.
Under section 58(1)(b) of the 1978 Act an employee's dismissal was to be regarded as unfair if the reason or principal reason for it was that the employee "had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time". Subsection (2) defined "appropriate time" as including a time within working hours agreed or permitted with his employer.
Under section 59: "Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and either (a) that the reason . . . for which he was selected for dismissal was [one of those specified in section 58(1)] then . . . the dismissal shall be regarded as unfair." Section 153(1) defined "position" as "taken as a whole . . . his status as an employee, the nature of his work and his terms and conditions of employment."
Jeremy McMullen QC (Pattinson & Brewer) for the employee; Robert Thomas (Holt Phillips, Bristol) for the employer.
Lord Justice Peter Gibson said the packaging department in which Mr O'Dea worked was closed as part of a substantial reorganisation. His position therefore became redundant. There could be no doubt that the tribunal's task, in considering whether the circumstances constituting the redundancy applied equally to one or more other employees who held similar positions and who had not been dismissed, was to look at Mr O'Dea's "position" and compare it with theirs. In so doing, it was necessary to ignore trade-union activities.
If the time spent by a shop steward by arrangement with the employer could put him in a position dissimilar to other employees for the purpose of section 59, that would largely defeat the section's evident purpose. But it was argued for Mr O'Dea that the comparison should also leave out any constituent of a person's position which was attributable to an agreement to enable him to carry on trade-union activities. Thus the tribunal should have ignored the fact that Mr O'Dea, though employed as a technical services, was actually given the work of a packaging operator.
His Lordship disagreed. Such an approach would require the tribunal to ignore not merely what Mr O'Dea did as a shop steward but also what work he did as an employee as well as the terms and conditions of his employment. There was no justification for this in the language of section 59 read with section 153(1). Indeed, it would render any meaningful comparison futile in such a case as this.
Lord Justice Balcombe and Lord Justice Hutchison concurred.
Paul Magrath, Barrister