Dismissal of Gate Gourmet workers taking part in industrial action was reasonable

Consultant editor Darren Newman considers the Employment Appeal Tribunal's decision regarding the 2005 Gate Gourmet industrial action. Unusually, it was called on to comment on the reasonableness of dismissing employees for taking industrial action.

Cases dealing with industrial action dismissals do not often arise. By historical standards, industrial action is now rare. When it does occur, it tends to do so in 24-hour bouts, so matters rarely have time to escalate to any consideration of dismissal. However, in Sehmi v Gate Gourmet London Ltd; Sandhu and others v Gate Gourmet London Ltd EAT/0264/08 & EAT/0265/08, a decision by the employer to sack several hundred workers within hours of industrial action starting led to a large number of unfair dismissal claims, most of which were either withdrawn or dismissed by the tribunal.

The central problem faced by the employees was that they were dismissed while taking part in unofficial industrial action and therefore barred from claiming unfair dismissal. Unofficial industrial action is a much misunderstood term. Industrial action is not deemed to be unofficial simply because there has been no ballot. Unofficial action is action that has not been authorised or endorsed by the trade union. For these purposes this includes any official of the union including a shop steward. In other words, if the action has been authorised or endorsed by a single shop steward the action is official.

In the Gate Gourmet case, there were trade union officials on the scene when the impromptu strike erupted and it might be considered surprising that the tribunal held that the action that took place was unofficial. Nevertheless, that was the finding, and the Employment Appeal Tribunal (EAT) did not feel able to interfere with it. However, at the time of the dismissals, it may well have appeared to Gate Gourmet that the action was official, albeit unlawful. That might explain why the company took such dramatic and sweeping steps to deal with it.

If industrial action is unofficial, anyone dismissed while taking part is barred from bringing an unfair dismissal claim (s.237 of the Trade Union and Labour Relations (Consolidation) Act 1992). If, however, the action is official, but organised unlawfully, a different rule applies. Employees who are dismissed in the course of official but unlawful action are barred from claiming unfair dismissal, but only if the employer has dismissed all of those taking part in the strike (s.238). Employees will also be able to claim unfair dismissal if, within three months of the dismissals, the employer re-engages some, but not all, of the employees who were dismissed (s.238(2)(b)). Where such selective re-engagement takes place, the fairness of the dismissal depends on the reason why the complainant was not re-engaged.

Gate Gourmet therefore had to be careful going down the dismissal route. If it dismissed only the most vociferous strikers, and the action was later held to be official rather than unofficial, all the dismissed employees would have been able to claim unfair dismissal. Even if the company had dismissed all the employees who had stopped work and gathered in the canteen, employees who were absent without explanation on that day might nevertheless have been held to have been taking part. It would have taken only one employee who was taking part to slip through the net to open the way for hundreds of claims.

In the event, however, the action was held to be unofficial, and there was no legal need for Gate Gourmet to be quite so thorough. A number of employees who were dismissed despite not taking any part in the action succeeded in their unfair dismissal claims. However, the claims decided by the EAT were all unsuccessful, in most cases because the individual was found to have been taking part in the action when he or she was dismissed, even if he or she had not been taking part from the beginning.

One of the cases dealt with by the EAT was particularly interesting. An employee who claimed that he was sent home by his manager on the day of the strike and who was dismissed when he presented himself for work some days later was held (quite rightly) not to have been taking part in the strike when he was dismissed. Under s.237, what matters is not why the employee was dismissed but whether or not at the time of dismissal he or she was taking part in unofficial industrial action. Since this employee was not, it followed that he was allowed to bring a claim. Given that he was dismissed on the spot, without any investigation or hearing (he was offered an appeal), he might have thought that he was on to a winner. However, the tribunal held that his dismissal was fair and the EAT accepted this.

Central to this outcome was a finding that, in the heat of the industrial battle that was being waged, it was fair for the employer to "shoot first and ask questions later", and reasonable for the employer to dismiss an absent employee without any investigation into the circumstances of his absence.

The EAT agreed with the tribunal that the modified statutory dismissal procedure applied. The procedure has now been repealed, but the case shows that it can be fair to dismiss an employee in the context of strike action without holding a full investigation and hearing. I find this surprising. One of the key policy objectives behind our provisions dealing with industrial action dismissals is to prevent tribunals from getting involved in the rights and wrongs of collective industrial disputes, albeit by the rather heavy-handed method of denying tribunals jurisdiction to hear such claims at all. In finding that the dismissal in this case was a fair one, the EAT has come down clearly on the employer's side and accepted the employer's right to dismiss those who have taken strike action - without any consideration of what prompted the strike and that it might have been justified. If this is the approach that the tribunals and the EAT take to the fairness of industrial action dismissals, it is questionable if the extremely complicated provisions of ss.237 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 actually achieve anything useful. This might be a case for employment law simplification.

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