Employment Cases Update

Markham v Asda Stores Ltd UKEAT/0287/18/OO

Date published: 08/10/2019

Appeal against the ET’s decision dismissing the Claimant’s claims categorised as trade union detriment, trade union dismissal, health and safety dismissal, and ordinary unfair dismissal. Appeal allowed in part.

The Claimant, a safety representative appointed by a trade union recognised by the Respondent, was prevented from carrying out a safety inspection. When he refused to return to work, he was suspended and subsequently dismissed. He brought a number of claims, which were all dismissed by the ET. The Claimant appealed, raising three issues: (1) whether the ET failed to consider the Claimant's claim for automatically unfair dismissal contrary to s 100(1)(b) Employment Rights Act 1996 ("ERA") ("the health and safety dismissal claim"); (2) whether the ET's failure to consider an alleged breach of reg 5 of the Safety Representatives and Safety Committees Regulations 1977 ("1977 Regulations") amounted to a legal error; and (3) whether the ET erred in law in dismissing the complaints under ss 146 and 152 Trade Union and Labour Relations (Consolidation) Act 1992 ("TULR(C)A") ("the trade union detriment and dismissal claims") without first considering whether there had been a breach of reg 5 of the 1977 Regulations.

The EAT held that no case under reg 5 of the 1977 Regulations had been pleaded as a free-standing issue, so the ET's failure to deal with it did not amount to an error of law, and that the ET's failure to consider the 1977 Regulations made no difference to the outcome of the complaint of trade union victimisation. However, the ET had failed to address s 100(1)(b) ERA in its narrative or conclusions; accordingly, the matter relating to s 100(1)(b) ERA would be remitted to the same ET for consideration of a number of specific questions.

Read the full text of the judgment on BAILII or download the file by clicking the link below.