Fire Brigades Union v P Embery

The Employment Appeal Tribunal allowed the Fire Brigades Union's appeal against an Employment Tribunal finding that the union had unfairly dismissed Mr Embery. The EAT held that the ET failed to give adequate reasons under rule 62 of the Employment Tribunal Rules of Procedure 2013 because it did not address the central submission that a person cannot ordinarily be employed by two different employers to perform the same work at the same time, nor did it explain whether it accepted or rejected the authorities cited on that point (notably Patel and Gough).

The EAT concluded, applying the legal principles in section 230 and section 98 Employment Rights Act 1996 and relevant case law, that the facts found by the ET did not support a conclusion that the union exercised the degree of control over, or provided remuneration in the nature of pay to, Mr Embery sufficient to create a contract of employment. The EAT therefore substituted a decision dismissing the unfair dismissal claim.

Background and parties: The claimant, Mr Embery, was an employee of London Fire Brigade (LFB) who had been released on a full-time basis to perform elected trade union duties for the Fire Brigades Union (FBU). The FBU is a national trade union representing firefighters. Mr Embery was removed from office and banned from holding office following disciplinary proceedings by the FBU. He brought claims to an Employment Tribunal for unfair dismissal and discrimination; the ET found dismissal unfair and that the FBU was his employer for the period of full-time release.

Nature of the claim and relief sought: The primary issue on appeal was whether the FBU could be found to have been Mr Embery’s employer such that it could have dismissed him. The relief effectively sought by the appellant on appeal was to overturn the ET’s finding of employer status and consequent finding of unfair dismissal.

Procedural posture: The claim was heard in the Employment Tribunal (EJ Postle with lay members) in February 2021, with a reserved judgment sent on 4 August 2021. The FBU appealed to the Employment Appeal Tribunal and the appeal was heard on 14 February 2023, with judgment handed down on 14 April 2023.

Issues framed by the court:

• Whether the ET complied with rule 62 of the ET Rules of Procedure 2013 in giving sufficient reasons, particularly in relation to the issue of dual employment;
• Whether, on the facts found by the ET, the FBU was nevertheless Mr Embery’s employer — specifically whether there was a contract of employment characterized by personal service, mutuality and sufficient control;
• Whether the sums paid by the FBU to Mr Embery were remuneration in the nature of salary rather than reimbursements or allowances; and
• How binding or persuasive the cited authorities (for example Patel, Gough, Nailard, Viasystems and Cairns) were to the question of simultaneous employments.

Court’s reasoning and outcome: The EAT held that the ET’s reasons were insufficient because the ET did not state whether it accepted or rejected the central submission that a person generally cannot have two employers for the same work at the same time, nor did it address the competing authorities. On the merits, the EAT concluded that the principle identified in Patel and related authorities militated against recognising dual employment in this context and that, even allowing for some uncertainty about the nature of the annual payment to Mr Embery, the ET’s factual findings did not support a conclusion that the FBU exercised the requisite control over, or provided the nature of remuneration indicative of, an employment contract. The EAT therefore substituted its own conclusion and dismissed the unfair dismissal claim.

Subsidiary findings and context: The EAT emphasised that where an ET faces the question of compatibility of two employments and competing case law it must say whether it accepts or rejects the relevant authorities and why. The decision also notes statutory and regulatory alternatives available to trade union members dissatisfied with union disciplinary outcomes (for example complaints to the Certification Officer or particular statutory complaint routes).

Appeal allowed. The EAT held that the Employment Tribunal failed to give adequate reasons under rule 62 by not addressing the key submission that a person ordinarily cannot be employed by two employers to do the same work at the same time and by not dealing with the authorities relied upon. On the merits, the ET’s findings did not support a conclusion that the union exercised sufficient control or paid remuneration in the nature of salary such as to create a contract of employment; therefore the unfair dismissal claim was dismissed by substitution.

Appeal from the Employment Tribunal (EJ Postle with lay members) following a hearing on 22-25 February 2021 and a reserved judgment sent 4 August 2021. The appeal was determined by the Employment Appeal Tribunal, judgment given [2023] EAT 51 (14 April 2023).