British Gypsum Ltd v Thompson

An employee may be undertaking independent trade union activities when expressing opposition to workplace changes during a workforce presentation, particularly where the employee is acting as a shop steward and articulating members’ concerns. Such activity may occur at an appropriate time even if the intervention is unhelpful or counter-productive, where the employer has not prohibited participation. A tribunal’s delay in promulgating judgment does not ordinarily create an independent ground of appeal. An exception may arise where excessive delay creates a real risk that the litigant has been deprived of the substance of the right to a fair trial under Article 6(1). An appeal hearing may cure defects in an earlier redundancy process, but the tribunal must make findings on whether it was genuinely conducted de novo.

The respondent, a recognised trade union shop steward, was selected for redundancy during a restructuring involving the introduction of new workplace systems. An employment tribunal found that his dismissal was automatically unfair because the principal reason for his selection was his participation in trade union activities at an appropriate time.

The employer appealed, arguing that the respondent had expressed personal opposition to the systems, that any defects had been cured by the internal appeal, and that the tribunal’s substantial delay demonstrated that it had overlooked material matters. The respondent brought a contingent cross-appeal concerning fairness under section 98(4) of the Employment Rights Act 1996. The central issues were whether the conduct was protected union activity, whether the appeal was curative, and whether the delay constituted an independent ground of appeal.

1. Union activity. The appeal failed on the issue whether the respondent was undertaking trade union activities at an appropriate time. The tribunal was entitled to find that, at the meeting announcing the reorganisation and redundancies, the respondent was acting in the dual capacity of employee and shop steward and was articulating concerns which could represent the views of members. The fact that his interventions were robust, unhelpful or potentially counter-productive did not prevent them being trade union activities. The shop stewards had not been prohibited from speaking at the presentation, so the conduct occurred at an appropriate time.
2. Effect of the internal appeal. The tribunal had recorded that the respondent’s appeal was rejected but made no findings on whether the appeal was a genuinely de novo hearing capable of curing defects in the redundancy process. Since submissions had been made on that issue, the omission was a material error of law. The case was remitted to a differently constituted tribunal for rehearing on that issue alone.
3. Delay. The delay was regrettable, particularly because the tribunal also failed to address the appeal issue. However, under Connex South Eastern Ltd v Bangs [2005] 1 CR 763, delay in promulgating an employment tribunal’s decision gives rise to an independent ground of appeal only in exceptional circumstances. This could occur where excessive delay created a real risk that the litigant had been deprived of the substance of the right to a fair trial under Article 6(1). That threshold was not met here.
4. The appeal was therefore dismissed save for the ground concerning the internal appeal, which was allowed. The contingent cross-appeal was stayed pending the remitted hearing.

• Employment Appeal Tribunal: The appeal from the employment tribunal’s decision of 27 July 2010 was dismissed except on the failure to consider the effect of the internal appeal. That issue was remitted to a differently constituted tribunal, and the cross-appeal was stayed.