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Balfour Kilpatrick Ltd v Acheson & Ors



Appeal by the employer from a decision of an employment tribunal that the applicants had been dismissed contrary to s.100(1)(c) Employment Rights Act 1996. The respondent employees were employed by the appellant at a construction site. Some of the employees were members of a recognised trade union, some were members of a non-recognised union and others did not belong to a union. Concerns regarding health and safety conditions at the site were raised by a union representative and another employee. The employer was indifferent to the problems. The employees consequently refused to work and were dismissed. The applicants brought an action for automatic unfair dismissal contrary to s.100(1)(c) of the 1996 Act and in the alternative, for general unfair dismissal. The appellant asserted that the tribunal erred in its findings in relation to each of the conditions that were to be satisfied for s.100(1)(c). Specifically, it was contended that: (i) the tribunal did not consider whether it was reasonably practicable to act through the health and safety representatives or a safety committee; (ii) the employees did not use "reasonable means" within the meaning of s.100(1)(c) to convey their concerns; (iii) the finding that the reason for the dismissal was participation in activities falling within s.100(1)(c) was erroneous; and (iv) the conclusion that the strike conducted by members of the recognised union was official was wrong.

HELD: (1) Although the tribunal had not asked the right question in relation to s.100(1)(c), the employees had been entitled to raise their concerns through union representatives and the defendants were not outside the scope of s.100(1)(c). (2) Under s.100(1)(c) of the 1996 Act, employees were required to "br[ing] to [the] employer's attention" the circumstances that were potentially harmful to health and safety. In this case, the employees did this by taking industrial action. Even with a liberal construction of that phrase, it was not possible to say that taking industrial action was a reasonable means of bringing health and safety concerns to the employer's attention. Therefore, the employees were not covered by s.100(1)(c). (3) The Employment Tribunal was correct to conclude that as the applicants were dismissed for failing to return to work; the reason for their dismissals was that they were taking action pursuant to s.100(1)(c). It was immaterial that the respondent was indifferent to the reason why the applicants were not at work. (4) By virtue of s.237 Trade Union and Labour Relations (Consolidation) Act 1992, employees taking part in unofficial action could not claim for general unfair dismissal. In the present case, the recognised union tried to repudiate its authorisation of the action. However, as its notice was defective, it was held that its members were taking part in an authorised action. Therefore, the employees belonging to the recognised union could claim for general unfair dismissal (so long as they had the requisite qualifying period of one year). As regards, the employees who were members of the non-recognised union, they were precluded from bringing claims for unfair dismissal as the non-recognised union had not authorised the industrial action (ie they were taking part in an unofficial action). Lastly, the employees who did not belong to a trade union were not caught by the provisions of s.237 and could also bring claims for general unfair dismissal (subject to the qualifying period).
Appeal allowed.

Tom Linden instructed by McDermott, Will & Emery for the appellant. John Law instructed by Jack Thornley & Parners and Jordans for the 2nd-23th respondents. Michael Ford instructed by Rowley Ashworth for the 26th-52nd respondents. Mr Matthews in person. Mr Manning in person. All other respondents were not present and were not represented.
LTL 14/4/2003 (Unreported elsewhere)

Document No. AC0104834

[2003] IRLR 683

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