Trade union activity and unfair dismissal

Mr Andrews won his unfair dismissal case in the Employment Tribunal. He had been unfairly dismissed for his trade union activities. On appeal Mr Andrews won. The judgement started by expressing sympathy with the barrister representing the employer, who the court said must have felt something like a member of the infantry approaching the enemy lines on 1 July 1916 in the Battle of the Somme.

Facts

Background

Mr Andrews was employed by Chorley Borough Council between 1998 and 2009. He was originally employed as a gravedigger, later becoming a team leader in the Grounds and Maintenance department. In 1996 he developed a problem in his finger and was redeployed as an Assistant Marketing Manager. He was later promoted to Manager.

He was also the Branch Secretary of the union Unison.

Another employee, Steven Brereton, had brought a tribunal claim against the council. In the claim he alleged that the Human Resources officer “had exerted pressure in connection with Mr Brereton, in connection with his trade union activities.”

As Branch Secretary of the union, Mr Andrews had supported the claim. The claim was settled. He had also opposed a proposal to outsource management markets. This proposal was abandoned.

In 2009 there was a restructuring, in which 17 jobs were replaced with 11 different ones.  This would “delete the jobs of Market Managers, Senior Market Managers and Market Officers, and replace with a Market Co-ordinator and a Market Officer.”

This meant that the role of Mr Andrews was largely replaced by the role of Market Co-ordinator – which paid £5,000 less a year.

There was also an appointment of a Town Centre Manager – Mr Heald. he was a graduate who had worked at Manchester Council and had “considerable experience” in retail and in markets. When the union heard about this they made written representations to the council that the restructure should affect this job description, as it would have to incorporate more responsibility to the management of markets.

Dismissal

In February 2009 Mr Andrews had a meeting with Mrs Meek, and his line manager, and someone from the HR department. He was told that he was going to be made redundant. He alleged that Mrs Meek said, “there’s nothing in it for you.”

He made this allegation in a letter about a month after the meeting. It was not refuted in the response.

At Tribunal the findings about Mrs Meek’s evidence were plain: she could remember almost nothing apart from the fact that she denied saying, “there’s nothing in it for you.”

At the Tribunal the council failed to call witnesses, who could have corroborated their case.

There was no opportunity for Mr Andrews to prepare a powerpoint presentation, unlike Mr Head. And Mr Head was allowed to put in his job application late.

The Tribunal held that on the basis of the application forms “it is likely Mr Heald would have been appointed because he did have superior qualifications and wider experience.”

They also criticised that fact that Mr Andrews had not been told of another job, even though it was well known that there was the job of Market Co-Ordinator. The Employment Tribunal summed up the position thus:

In terms employers have an overriding duty to act fairly and consistently, and he should have been given the opportunity to apply for the Market Co-ordinator post. The council should not have assumed the Claimant would not have applied for a job with a lower salary.

Trade Union activity and unfair dismissal

The judge was unequivocal about the fact that the Tribunal was entitled to make the decision that Mr Andrews was dismissed for trade unions activities and that constitutes unfair dismissal. The other members of the tribunal both said that “it strikes them like treading on a rake with a blow to the head.”

Looking through the decision, of 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, and that Jane Meek should have been interviewed, grafted on to the Claimant’s work on behalf of another member, in which Jane Meek was a protagonist, the fact that the Claimant had caused problems for the management in connection with outsourcing the markets, was abundant evidence, in the view of all members of this Tribunal, for an inference to be drawn.