Burgess v Bass Taverns Ltd

Where an employer consents to an employee using a workplace meeting as a forum for trade union recruitment, that consent ordinarily includes explaining the union’s services and making a case that the union will assist members where the employer will not. Critical or disparaging remarks about the employer do not, without more, take the conduct outside trade union activities or make a dismissal fall outside the protection in section 58 of the Employment (Protection and Consolidation) Act 1978. A blanket implied term forbidding criticism is unrealistic. The employee’s admission that he had gone over the top is not, by itself, a legal admission that his speech was outside protected activity. The protection is not unlimited: malicious, untruthful or irrelevant conduct may fall outside it. An appellate tribunal must correct a legally impermissible conclusion, but should not substitute its view for a permissible finding of fact.

Mr K W Burgess, a manager and shop steward, was constructively dismissed after being demoted from trainer manager following a presentation at an induction course for trainee managers. The Industrial Tribunal found unfair dismissal but held that the dismissal was not for taking part in trade union activities under section 58 of the Employment (Protection and Consolidation) Act 1978, with the consequence that no special award was payable.

The Employment Appeal Tribunal allowed the company’s appeal on that issue. The Court of Appeal considered whether critical remarks made during a presentation consented to as a trade union recruitment forum were protected activities at an appropriate time, or whether an implied limitation on the employer’s consent made them conduct outside the statutory protection. It also considered whether the matter should be remitted.

Appeal dismissed with costs. Lord Justice Pill delivered the leading judgment. Sir Ralph Gibson and Lord Justice Balcombe agreed.

1. The Industrial Tribunal accepted that the presentation occurred at an appropriate time and in an authorised setting. Its conclusion that the dismissal was instead for conduct under section 57 (2) (b) of the Employment (Protection and Consolidation) Act 1978 was not a permissible option on the facts found. The relevant conduct was the employee’s participation in trade union activities within section 58 (1) (b).
2. Consent to use a meeting as a forum for recruitment ordinarily includes consent to explain the services provided by the union. That may include saying that the union will fight a member’s cause where the company will not. A union recruitment meeting cannot realistically be confined to maintaining harmonious relations with the employer.
3. An implied term that the recruiter must say nothing critical or adverse about the company was wholly unrealistic. The remarks found by the Industrial Tribunal amounted to rhetoric and hyperbole. There was no finding of dishonesty, bad faith, malice or ill feeling. The admission that the employee had gone over the top did not establish in law that the speech fell outside trade union activities.
4. The protection has limits. The court was not deciding that every speech at a recruitment meeting, however malicious, untruthful or irrelevant, would be protected. The earlier decision in Lyon v St James Press Limited [1976] ICR 413 concerned legislation without an equivalent of section 58 (2) (b), so it did not determine the present statutory question.
5. The Employment Appeal Tribunal correctly intervened because the Industrial Tribunal had fallen into legal error, rather than merely because it preferred a different view of the facts. The principle in Piggott Brothers v Jackson [1992] ICR 85 did not require remittal: the proposed implied-term argument had no merit on the facts found.

1. Court of Appeal (Civil Division): On 31 March 1995, dismissed the employee’s appeal with costs and upheld the Employment Appeal Tribunal’s conclusion on the statutory trade union activity issue.
2. Employment Appeal Tribunal: On 2 February 1994, allowed the company’s appeal from the Industrial Tribunal’s conclusion that the dismissal was not for taking part in trade union activities.
3. Industrial Tribunal: On 18 March 1993, found that the employee had been unfairly dismissed but rejected his claim under section 58 of the Employment (Protection and Consolidation) Act 1978.