Gayle v. Sandwell & West Birmingham Hospitals NHS Trust

For a claim under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, the tribunal must determine on the evidence whether the employer’s sole or main purpose was to prevent, deter or penalise trade union activities. A final written warning is not subject to a special bad-faith test in that claim. Clear factual findings may establish that disciplinary action was taken for management reasons.

Initiating and continuing disciplinary proceedings can constitute a detriment for victimisation purposes, whatever their eventual outcome. A tribunal must consider separately the alleged victimisation arising from the disciplinary process and the alleged victimisation arising from dismissal.

The appellant, a midwife and trade union representative, brought claims concerning a final written warning and later disciplinary proceedings which culminated in dismissal. The Employment Tribunal dismissed her claims under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and her victimisation claims under section 2 of the Race Relations Act 1976.

On appeal, she contended that the tribunal had applied an impermissible bad-faith test to the trade union claim and had failed separately to determine whether the initiation and continuation of the later disciplinary proceedings constituted victimisation and a detriment.

1. Trade union detriment. The appeal concerning section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 was dismissed. The Employment Tribunal’s reasons, read as a whole, contained clear findings that the final written warning was imposed because the appellant failed to comply with a management request concerning the arrangements for time off, so that the clinic could be managed properly. Those were findings that the warning was not imposed because of her trade union activities.
2. The Employment Tribunal had set out the statutory provision and had determined the reason for the warning on the evidence. Its reference to Tower Hamlets v Anthony [1989] IRLR 394 and Stein v Associated Dairies Ltd [1982] IRLR 447, concerning the circumstances in which a tribunal may go behind a final written warning when considering dismissal, did not show that it had applied a requirement of bad faith or had failed to decide the section 146 issue on the balance of probabilities.
3. Victimisation and detriment. The Tribunal had considered the complaint that dismissal was victimisation, and that finding was not set aside. It should, however, have separately considered the complaint that the initiation and continuation of the second disciplinary proceedings, including the fraud allegations, constituted victimisation.
4. Taking an employee through a disciplinary process can in law amount to a detriment, irrespective of the eventual outcome. The Tribunal therefore erred in treating the dismissal of the fraud allegations as preventing any detriment arising from that process.
5. The decision on victimisation relating to the disciplinary process was set aside and that issue was remitted to the same Employment Tribunal, preferably on the existing findings of fact and on a limited basis.

• Employment Appeal Tribunal: The appeal was dismissed concerning the section 146 claim and the victimisation claim relating to dismissal. The victimisation claim concerning the initiation and continuation of the second disciplinary process was set aside and remitted to the same Employment Tribunal.
• Employment Tribunal: The Tribunal had dismissed all relevant claims, including the section 146 claim and victimisation claims under section 2 of the Race Relations Act 1976.