Carter (Deceased) v Governing Body of Cannock Chase Technical College

Dismissal for refusing to perform duties falling within an employee’s contract is a conduct dismissal, even where the refusal follows trade union advice. It is not automatically unfair under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 unless the reason or principal reason is union membership, taking part in union activities at an appropriate time, or non-membership or refusal to join. Following union advice is not, without more, taking part in union activities. An appeal from an Employment Tribunal to the Court of Appeal lies only on a question of law, and permission requires a real prospect of success.

Mr Carter brought proceedings alleging unfair dismissal, harassment and victimisation after his employment at Cannock Chase Technical College ended. The Employment Tribunal found that he had been unfairly dismissed, but that he had contributed 50 per cent to his dismissal, refused reinstatement or re-engagement, and later awarded compensation.

The Employment Appeal Tribunal dismissed his appeal for want of an error of law. After Mr Carter’s death, Mr Clancy was authorised under section 206(4) of the Employment Rights Act 1996 to continue the appeal for his estate. The issue before the Court of Appeal was whether the dismissal, said to have followed trade union advice, fell within the automatic unfair dismissal protection in section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, and whether there was a real prospect of a successful appeal.

Lord Justice Mummery refused the application for permission to appeal and extension of time. The formal order was “Application refused”.

1. Scope of an appeal. An appeal from an Employment Tribunal to the Court of Appeal lies only on a question of law. The Court cannot re-examine findings of fact or entertain questions arising outside the Tribunal proceedings.
2. Permission. Permission should be granted only where the proposed appeal has a real prospect of success. There is no point in permitting an appeal likely to fail, particularly where an unsuccessful appellant may face a costs order.
3. Section 152. The automatic unfair dismissal protection in section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 applies where the reason or principal reason for dismissal is one of the specified union-related reasons: membership, taking part in union activities at an appropriate time, or non-membership or refusal to join. The provision does not make dismissal automatically unfair merely because an employee has received or followed union advice.
4. Application to the proposed appeal. The Tribunal had found that Mr Carter was dismissed because he refused to carry out examination-related work falling within his contractual duties. That was conduct, not redundancy. The case did not concern dismissal because of union membership, participation in union affairs, or non-membership. The procedural defects identified by the Tribunal explained why the dismissal was ordinarily unfair, but they did not convert the dismissal into one automatically unfair under section 152. No arguable error of law was shown.

• Court of Appeal (Civil Division): On 30 July 2002, Lord Justice Mummery refused the application for permission to appeal and extension of time.
• Employment Appeal Tribunal: Dismissed Mr Carter’s appeal, finding no error of law in the Employment Tribunal’s decision. Mr Clancy had been appointed as the appropriate person to continue the appeal for Mr Carter’s estate under section 206(4) of the Employment Rights Act 1996.
• Employment Tribunal, Birmingham: Found that Mr Carter had been unfairly dismissed, assessed his contribution at 50 per cent, refused reinstatement and re-engagement, and subsequently awarded compensation of £2,583.10.