Beaver Management Services Ltd v Acheson

An employer may be liable for a site manager’s trade-union-motivated withdrawal of an employment offer where the manager had actual or ostensible authority to recruit workers and withdraw offers. The manager’s unlawful motive is then attributed to the employer, even if the employer did not know of it.

For automatic unfair dismissal, a factual but-for connection with earlier trade-union discrimination does not by itself establish the statutory reason for dismissal. The tribunal must determine why the employee was dismissed at the time. A redundancy selection made under an agreed last-in-first-out criterion may therefore be for redundancy rather than trade-union membership.

The Employment Tribunal upheld the claimant’s complaint that an offer of employment had been withdrawn because he was a trade-union activist. It found that the site manager acted as the employer’s agent when recruiting electricians and withdrawing the offer.

The claimant was later employed. He was selected for redundancy under an agreed last-in-first-out arrangement. He contended that the dismissal was automatically unfair because, but for the earlier unlawful withdrawal, he would have started one day earlier and would not have been selected.

The employer appealed the agency finding. The claimant cross-appealed the rejection of his automatic-unfair-dismissal claim.

1. Both the appeal and cross-appeal were dismissed.

2. The Employment Tribunal was entitled to find that the site manager acted for the employer in recruiting electricians. He had a wide discretion over appointments and, at least, ostensible authority to recruit workers and remove them when labour requirements changed. The offer was made as part of recruitment to employment by the employer, although a Lindhurst employee performed the mechanical task of telephoning candidates. The manager’s withdrawal of the offer was therefore an act of the employer for the purposes of Trade Union and Labour Relations (Consolidation) Act 1992, section 137. Marsh v Joseph, [1897] 1 Ch 213, was distinguishable because it concerned no prior authority.

3. The Tribunal was also entitled to reject the contention that the later redundancy dismissal was automatically unfair under sections 152 or 153. The statutory question was the reason why the claimant was dismissed in December 2008. It was not resolved by asking whether, but for the earlier unlawful withdrawal of the offer, he would have had sufficient service to escape selection. The Tribunal permissibly found that the reason was redundancy and selection under the agreed LIFO principle. This approach was supported by CGB Publishing v Killey, [1993] IRLR 520, and the analysis in Amnesty International v Ahmed, [2009] IRLR 884.

4. The earlier unlawful act could nevertheless be relevant to compensation for loss flowing from withdrawal of the employment offer, including a claimed loss of employment caused by the subsequent operation of LIFO. That question was left open.

• Employment Appeal Tribunal: the employer’s appeal and the claimant’s cross-appeal were dismissed: [2012] UKEAT 0268_11_1406.
• Employment Tribunal (Manchester): judgment dated 21 October 2010, with written reasons promulgated on 11 November 2010. It upheld the refusal-of-employment complaint and rejected the automatic-unfair-dismissal complaint.