In a recent news update the Fire Brigades Union has claimed that its recent victory in the Employment Appeal Tribunal in overturning a prior decision that Paul Embery had been unfairly dismissed was a landmark victory for all trade unionists. Aside from the realm of PR operations, the decision is in reality not much more than a damp squib.
In an article full of rhetorical flourish, the FBU assert that the decision to overturn the decision find Embery had been unfairly dismissed was “a highly unusual move [in that] the Employment Appeals Tribunal completely overturned and substituted the original ruling” and that the judgment will “come as a relief not only to the FBU but to the whole trade union movement.”
I have referred to the background to the dispute between Embery, a former member of the FBU Executive committee, and the FBU before. Embery was disciplined by the union for a pro-Brexit speech he had given. In the last sentence of my earlier piece I had commented that “it is open to him to pursue a complaint to the Certification Officer of unfair subjection to disciplinary proceedings.” Mr Embery did make that complaint, which the Certification Officer dismissed.
However, Paul Embery also made a complaint of unfair dismissal against FBU (along with a complaint of religion or belief discrimination). Although the employment tribunal dismissed the discrimination complaint it found that Embery had been unfairly dismissed (judgment here), a decision that attracted media attention. That unfair dismissal decision was based on one simple finding: the disciplinary process adopted by the FBU was predetermined as to its outcome:
111. To the Tribunal’s mind on the one hand the Union advocates free speech, was aware that the claimant had openly campaigned for many years, written many articles and attended media functions expressing his views without any prior disciplinary action taken against him. Others in the Union had also advocated differing opinions as was accepted by the Union hierarchy from time to time there would be differences of opinion.
112. The Tribunal repeats, starting with the investigation the ambit was flawed the Tribunal overwhelmingly felt the matter was pre-determined. That the decision on the facts was not a reasonable response that a reasonable employer would or should make on the history of the claimant’s campaigning with the open knowledge of the Union.
113. To suggest that the claimant’s conduct was in some way prejudicial to the Trade Union and would have amounted to gross misconduct is difficult to understand on the facts and clearly does not fall within the band of a reasonable response of a reasonable employer and therefore the claimant’s dismissal was unfair.The conclusions of the Employment Tribunal in the first judgment.
At no point did the Employment Appeal Tribunal question those judgments (although, given the nature of the appeal they were not asked to). However, a finding that a trade union has established an unfair and predetermined disciplinary process is and should not be pleasant reading for any trade unionist and bears bore than a passing resemblance to the shambles that was the factual background and complaint in ASLEF v Brady (which, as it happens, is is a case that can be legitimately described as “landmark”).
And what of the “highly unusual move” not to remit the case to the employment tribunal again but instead overrule the judgment and find there was no unfair dismissal? Again, it is not really that unusual at all in the circumstances. It is certainly true that appellate decisions (like the EAT) do not make findings of fact (how said what? what happened? etc) and that that is a role preserved for the employment tribunal. That means that if after a ruling of law the facts are in dispute and could be interpreted one way or another then a case will be remitted to the employment tribunal to make findings of fact and then apply them to the law (as determined by the EAT). That is what normally happens. So in that sense it could be said a failure to do so is “unusual”.
However, the issue of law was whether an elected trade union representative, even if s/he is working full time for the union in that capacity, can ever be an employee (of the union). The facts underlying that position (that he was an elected official) were never in doubt. As a matter of law the EAT found , notwithstanding the degree of control FBU had over daily work, Mr Embery could not be an employee. And that is the simple reason why Mr Embery found his unfair dismissal finding overruled. As it is drafted the right to claim unfair dismissal under the Employment Rights Act 1996 is a right held only by employees so, if Mr Embery was not as a matter of law an employee, then he could have no standing to bring the claim he did and the result necessarily had to be overruled. In those circumstances, the EAT’s decision is not really highly unusual at all but entirely predictable.
And is is a landmark decision? No.
It is certainly of some interest as the question of whether an elected union official could be an employee of a union and has been considered before and, as the judgment notes, there are two separate previous decisions at the EAT that are not entirely consistent on the question. It remains the case that even after the Embery decision the two inconsistent lines of decision at the same level of appellate decision remain (different sittings of the Employment Appeal Tribunal have said different thing while there has been no decision by the Court of Appeal). It is true that as the most recent decision Embery will carry some extra authority if the same (rather niche) issue is raised again in a different case but that without a decisive decision ruling on the inconsistencies by the Court of Appeal this is a long way from “landmark” territory.
Perhaps some will think this post is a tad pedantic – but I find a union publishing what I have no doubt is a deliberately partisan and inaccurate article unseemly and a disservice to union members. The ET decision was overruled for a simple reason, Mr Embery was not an employee so had no right not to be unfairly dismissed. That is a legal reality that unions have long campaigned against and indeed Labour agreed to abolish in its 2019 manifesto. In this instance, that legal fact has come to the union’s aid and saved their legal blushes by allowing them to claim victory on an issue of legal jurisdiction alone.
For what it’s worth, I think the EAT decision was the right one (on the current law) and that insofar as Embery’s brand of politics is concerned I am in no way a supporter. Embery has consistently expressed views that are rightly problematic for trade unionists and I would not hesitate to support those who campaigned against him within the union such as Matt Wrack – but, just maybe, could we do it with a little less dissimulation and ensure his likes are resoundingly defeated at the ballot box instead?
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