Fire Brigades Union v P Embery

An individual who remains employed full-time by one employer will not ordinarily have a simultaneous contract of employment with a second body for the same work. A second employment may exist only where the employments are compatible. The question must be addressed directly where it is material.

An elected trade union official’s full-time commitment, fixed allowance and exposure to member disciplinary rules do not, without more, establish a contract of employment with the union. There must be a sufficient evidential basis for contractual remuneration and for control by the alleged employer over performance of the official’s duties.

Mr Embery remained employed by London Fire Brigade while on full-time release to perform elected offices for the Fire Brigades Union. London Fire Brigade paid his salary and employment benefits. The union reimbursed that cost and paid him an annual officials’ allowance and expenses.

After the union imposed a disciplinary sanction barring him from office, Mr Embery brought claims for unfair dismissal and discrimination. The Employment Tribunal held that he was also the union’s employee and that his dismissal was unfair. It rejected the discrimination claim, which was not cross-appealed.

The union appealed. The central issue was whether an elected official, already employed by and released from his main employer, had a second contract of employment with the union.

1. Appeal allowed. The Employment Tribunal’s decision that Mr Embery was the union’s employee, and its consequent finding of unfair dismissal, were set aside. The EAT substituted a decision dismissing the unfair dismissal claim.

2. The Tribunal’s reasons did not comply with Rule 62. A material submission was that a person generally cannot be employed by two employers to perform the same work at the same time. The Tribunal neither recorded nor resolved that submission, although it was supported by Patel v Specsavers Optical Group Ltd. It also failed to address the authorities specifically relied upon concerning released trade union officials. The omission prevented the parties and the appellate court from understanding how the decisive issue had been resolved.

3. The broad principle is that one employee cannot simultaneously have two employers. The limited exception for compatible employments did not assist. Simultaneous employment by London Fire Brigade and the union would be incompatible when the statutory rights and obligations of both alleged employers were considered. No exceptional policy reason justified recognising dual employment here.

4. Prison Officers Association v Gough and Cox was not a precise factual precedent, particularly because of the different remuneration arrangements. The EAT also respectfully doubted its reliance on vicarious-liability reasoning to resolve an employment-rights question. The different policy context matters.

5. The Tribunal had not adequately analysed whether the annual allowance was contractual remuneration for services rather than a payment connected with anticipated car and other expenses. More decisively, there was no evidential basis for sufficient control by the union over performance of the elected official’s duties. Disciplinary rules applying to all union members, and provisions concerning attendance at meetings, did not show employment-type control. A full-time commitment did not itself superimpose a second employment contract.

6. On the Tribunal’s findings and undisputed facts, lack of sufficient control meant that the unfair dismissal claim was bound to fail. Applying Jafri v Lincoln College, substitution rather than remittal was therefore appropriate.

• Employment Appeal Tribunal: Allowed the union’s appeal and substituted dismissal of the unfair dismissal claim: [2023] EAT 51.
• Employment Tribunal: Found that Mr Embery was the union’s employee and had been unfairly dismissed; rejected his discrimination claim. The Employment Appeal Tribunal set aside the unfair dismissal decision.