Markham v Asda Stores Ltd

A tribunal must determine a properly pleaded and agreed claim. Its failure to address an identified claim for automatic unfair dismissal under section 100(1)(b) of the Employment Rights Act 1996 is a material error where the necessary findings of fact have not been made.

The functions of a safety representative under the Safety Representatives and Safety Committees Regulations 1977 are distinct from activities of an independent trade union. A possible breach of the Regulations does not, without more, establish trade union victimisation under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

A safety-representative dismissal claim requires determination of whether the proposed inspection was protected and whether that activity was the reason, or principal reason, for dismissal.

The claimant, an HGV driver appointed by the GMB as a safety representative, sought to inspect his workplace on 30 March 2016. The respondent prevented the inspection, directed him to undertake driving duties and later dismissed him.

The Employment Tribunal dismissed claims for trade union detriment and dismissal, health and safety dismissal, and ordinary unfair dismissal. Although the agreed issues included automatic unfair dismissal under section 100(1)(b) of the Employment Rights Act 1996, the Tribunal did not address that claim in its reasons.

The appeal concerned whether that omission was material, whether an unpleaded freestanding complaint under Regulation 5 of the Safety Representatives and Safety Committees Regulations 1977 should have been determined, and whether the Regulations had to be considered in deciding the trade union claims.

1. Appeal allowed in part. The Employment Tribunal materially erred by failing to decide the pleaded and agreed health and safety dismissal claim under section 100(1)(b) of the Employment Rights Act 1996. The omission could not be treated as immaterial because the Tribunal had neither made the necessary findings nor applied its mind to that distinct statutory claim.

2. The trade union dismissal claim under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not determine the section 100(1)(b) claim. They are separate causes of action requiring different factual findings. In particular, the reasonableness of the instruction to drive, and the characterisation of the claimant’s subsequent conduct, depended on whether he was entitled to undertake the proposed inspection.

3. The remitted tribunal must decide whether the proposed inspection fell within Regulation 5 of the Safety Representatives and Safety Committees Regulations 1977, including the relevant prior inspection and notice questions. It must then determine the facts known to the employer, the reasonableness of the management instruction, and whether performing or proposing to perform the safety-representative function was the reason or principal reason for dismissal. If so, dismissal will be automatically unfair under section 100(1)(b); if not, the unappealed ordinary-unfair-dismissal finding remains unaffected.

4. There was no error in failing to determine a freestanding Regulation 5 complaint. It had not been pleaded, included in the agreed issues, or advanced as such at the hearing. A tribunal determines the dispute brought before it.

5. Nor did the Tribunal’s failure to consider Regulation 5 undermine its dismissal of the trade union victimisation claims. A safety representative’s regulatory functions are independent of trade union membership or activities. On these facts, undertaking a safety inspection was not participation in the activities of an independent trade union, so the timing analysis under section 146 was immaterial and the error caused no disadvantage to the claimant.

6. The section 100(1)(b) claim was remitted to the same Employment Tribunal for rehearing. All other grounds of appeal were dismissed.

• Employment Appeal Tribunal: allowed the appeal only as to the unaddressed section 100(1)(b) claim under the Employment Rights Act 1996 and remitted it to the same tribunal.

• Employment Tribunal, London South: dismissed all claims after a hearing in March and June 2018. Written reasons were sent to the parties on 14 September 2018.