Gayle v Sandwell & West Birmingham Hospitals NHS Trust

A complaint under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 turns on the employer’s sole or main purpose in imposing the alleged detriment. A tribunal must determine that factual question. A disciplinary warning imposed for a failure to comply with a management instruction about arranging time away from work was not imposed to penalise trade union activity.

Where a final written warning has been lawfully imposed, an employer may take it into account when deciding whether later misconduct justifies dismissal. The unfair-dismissal principle concerning warnings given in bad faith did not affect the prior statutory finding and did not arise on the facts.

The claimant, a midwife and trade union representative, received a final written warning after refusing to engage with her manager about arrangements for time away from clinical work for trade union activities. She alleged that the warning was detriment for trade union activity contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Employment Tribunal dismissed that claim and her claims for unfair dismissal, race discrimination and protected disclosure. It found that the warning resulted from her failure to comply with a management request, rather than from trade union activity. The Employment Appeal Tribunal dismissed her appeal on the section 146 issue in an order dated 16 April 2010, UKEAT/O338/09/RN.

She appealed on the basis that the tribunal had wrongly treated bad faith as necessary before it could look behind the warning, and that the warning should not have been considered in her later dismissal for misconduct.

1. Appeal dismissed. The court unanimously held that the Employment Tribunal had made a clear factual finding on the statutory issue. The final written warning was imposed because the claimant failed to comply with a management instruction to discuss a process for arranging time away from work. Its sole or main purpose was not to penalise her for attending a trade union meeting or otherwise taking part in trade union activities.

2. That finding entitled the tribunal to dismiss the claim under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The judgment had to be read as a whole. The tribunal’s reference to unfair-dismissal authorities did not show that it had substituted a bad-faith test for the statutory purpose test.

3. Once the warning had been found lawfully imposed and not contrary to section 146, the Trust was entitled to take it into account when deciding whether the claimant’s later misconduct justified dismissal. There was therefore no error in the tribunal’s conclusion that the dismissal was fair.

4. The authorities concerning final written warnings, Tower Hamlets v Anthony (1989) IRLR 394 CA and Stein v Associated Dairies Ltd (1982) IRLR 447 EAT, stated a clear and correct general principle. A warning may be disregarded if it was given in bad faith. That point was not engaged because bad faith was neither alleged nor found, and the references to those authorities had no effect on the tribunal’s earlier finding about the warning’s purpose.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal and upheld the rejection of the section 146 detriment claim and the unfair-dismissal challenge.
• Employment Appeal Tribunal: by an order dated 16 April 2010, UKEAT/O338/09/RN, dismissed the appeal on the section 146 issue, save for limited grounds concerning a victimisation claim under the Race Relations Act 1976.
• Employment Tribunal: in a decision promulgated on 11 May 2009, unanimously dismissed the claimant’s claims for trade union detriment, unfair dismissal, race discrimination and protected disclosure.