Shop steward's dismissal was not unfair

LAW REPORT 24 August 1995

O'Dea v ISC Chemicals Ltd; Court of Appeal (Lord Justice Balcombe, Lord Justice Peter Gibson and Lord Justice Hutchison) 28 July 1995

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

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Geography Teacher

£85 - £140 per day: Randstad Education Cheshire: We require a teacher of Geogr...

HR Assistant / Human Resources Assistant

£Neg + Excellent Benefits: Guru Careers: An HR Assistant / Human Resources Ass...

Talent Community Coordinator

£Neg + Excellent Benefits: Guru Careers: A Talent Community Coordinator is nee...

Business Support - Banking - Halifax - £250 pd

£150 - £250 per day: Orgtel: HR Analyst - Banking - HR - Halifax - £150 - £250...

Day In a Page

Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little
Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform