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Case No: 3304081/10


EMPLOYMENT TRIBUNALS


Claimant: Mr Cook

Respondent: British Airways plc


Heard at: Reading On: 5 and 6 September 2011, 5 and 6
January 2012 with a reserved judgment
decision meeting on 30 January 2012.

Before: Employment Judge Matthews
Members: Ms E P Burns
MrC E Carter


Representation:
Claimant: Mr D Panesar of Counsel
Respondent: Miss E Smith of Counsel




RESERVED UNANIMOUS JUDGMENT


1. Mr Cook was unfairly dismissed.

2. Should Mr Cook seek compensation as his remedy, it would be just and equitable to reduce both the amount of any basic and compensatory award by 50%.

3. The case is to · be listed for a further hearing to deal with the issue of remedy with a time allowance of one day.




REASONS


Introduction

1. Mr Kevin Cook makes two claims against the company. First, that he was unfairly dismissed by reference to sections 94 and 98 of the Employment Rights Act 1996 (the "ERA"). Second, that he was unfairly dismissed by reference to section 94 of the ERA and section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992 (the "TULRCA"). Because of the way the latter claim was pleaded (page 10 in the bundle - all references are to page numbers in the bundles unless otherwise indicated), the parties have proceeded on the basis that it is a claim specifically under subsection 152(1)(a) TULRCA, that the reason for Mr Cook's dismissal was his membership of an independent trade union. There is no claim by reference to subsection 152(b) of TULRCA, which is concerned with a dismissal for the reason that a person took part in, or proposed to take part in, the activities of such a trade union at an appropriate time. In our view, any such claim would have made no difference to the outcome.

2. The issue, at least, is straightforward. Mr Cook provided access to a document of his, "Scabbin'Crew News", on the website of BASSA. BASSA is the British Airways Stewards and Stewardesses Association, a branch of Unite the Union. BASSA membership is made up exclusively of the company's staff. Mr Cook provided this access during the dispute between the company and some of its it cabin crew staff over the Winter and following Spring of 2009/10. The company decided that, in doing so, (implicit in this is that Mr Cook should have been aware that the access could easily be widened to others) Mr Cook "took part in conduct likely to harass a BA colleague or colleagues and/or incited others to take part in such conduct in breach of SA's Dignity at Work Breach of EG102- Dignity at Work - Harassment & Bullying" (see the dismissal letter at 360). The phrasing of the reason for dismissal seems a little awry but the meaning is clear enough. The company says that, because of this, Mr Cook was dismissed without notice on 18 August 2010. Mr Cook says that his dismissal was unfair by reference to one or both of the claims mentioned above. The company, for its part, says that Mr Cook was fairly dismissed for a conduct reason, which had nothing to do with Mr Cook's membership of a trade union. The company advances "Polkey" and contribution arguments, should the dismissal be found to be unfair for any reason.

3. On behalf of the company we heard from Mr Xavier ("Harry") Van Der Donckt (Employment Policy Manager with the company) and Mr Paul Morgan (Manager, Network Operations, Planning, with the company). Both produced a written statement. The company also produced a statement from Ms Amy Lawrence (Human Resources Business Partner for Brands and Customer Experience with the company). Ms Lawrence did not attend the hearing and, whilst we read Ms Lawrence's statement, we gave it little weight. There has been argument about the significance of the company's decision not to call Ms Lawrence. Ms Lawrence was originally unavailable as a result of maternity leave. lt is for the company to decide how it will put its case. We make no criticism in this respect. Ms Lawrence was the "middle" of three decision makers involved in Mr Cook's dismissal and we doubt her evidence would have greatly assisted Mr Cook's case or the Tribunal. There was an agreed bundle of documentation in two folders supplemented by a small bundle of inter-parties' correspondence. Some additions were made to the bundle during the course of the hearing and the Tribunal's bundle is definitive in this respect. Both sides supplemented their oral argument before the Tribunal with considered written submissions sent to the Tribunal before the reserved judgment decision meeting.

4. The hearing was set down for 2 days. That proved to be insufficient. With the agreement of the parties two further days were set aside to complete the hearing. The first of these, 5 January 2012, was used by the Tribunal as a reading day, using an agreed reading list supplied by the parties. The Tribunal found that of considerable benefit. The Tribunal has found this to be a case in which a close scrutiny of the contemporary documentation was essential. lt was possible to finish the hearing in open Tribunal on 6 January 2012. To achieve this, however, Miss Smith and Mr Panesar were confined to around a half hour each of argument and it was agreed this could be supplemented, if they so wished, with written argument. Judgment was reserved.

5. lt was agreed that the hearing should address liability only (including any "Polkey" or contribution arguments) leaving remedy to another day, should that prove necessary.

6. At the start of the hearing Mr Panesar made an application to include in the bundle a book of cartoons by "Figment". We understand that the purpose behind this was to show context for "Scabbin'Crew News" in the form of other publicfitions available to company staff. We dismissed that application. Mr Panesar asked us to record our reasons for doing so. In short, they were two. First, the company should have been allowed time before the hearing to deal with this material, if it was to be produced. Second, and more importantly in our view, Mr Cook had had ample time to put together his arguments on disparity of treatment. lt was too late to seek to raise another on the first day of the hearing.




Facts

7. The company needs little introduction. lt is a commercial airline based in the United Kingdom, formerly the Nation's flag carrier and still seen by many as being so. In its response in these proceedings it recorded 38,000 employees in Great Britain.

8. The company had three policies that are important in this case. They are its "Disciplinary Procedures" ("EG901" at 21-28), its "Grievance Procedure" ("EG903" at 29-34) and its "Dignity at Work- Harassment and Bullying" policy ("EG102" at 41-44).

9. EG901 is a contractual policy (21). lt is the policy governing disciplinary action taken by the company against its employees. it is concise, well written and clear. lt provides for summary dismissal for gross misconduct but the examples given are not pertinent to Mr Cook's case. EG 903 is also a contractual policy.

10. EG102 is a non-contractual policy (41). The policy commits the company to ensure a workplace free from harassment and bullying and encourages anyone who thinks they have experienced such behaviour to report it. We note the following provisions in particular.

10.1 "Bullying" is defined but does not concern us as that was not a charge laid against Mr Cook. "Harassment" is defined as "unwanted and unsolicited conduct which is personally offensive to the recipient and, therefore, fails to respect the rights and dignity of others."(42). [Our underlining]. lt seems clear, therefore, that for "harassment" to occur there must be an identified recipient of treatment, which treatment that recipient finds offensive.

10.2 The policy continues: "The effect of the unwanted behaviour on the person who claims to have been bullied or harassed will be an important factor to be taken into account, whether or not the behaviour was intended to be harmful." The policy goes on to give examples of harassment. These include: "offensive or suggestive jokes, banter or language". The policy also stipulates that harassment may consist of a single act.

10.3 The policy sets out how an individual who believes they have been the subject of harassment should take action. If appropriate, they may speak informally to the person concerned. Otherwise the matter is to be reported promptly to their line manager or that person's manager, depending on the circumstances, and the employee can raise a grievance under EG903.

10.4 The policy includes this (44): "All formal complaints will be dealt with in accordance with EG903: Grievance Procedure (Employment Guide) and, if appropriate, EG901: Disciplinary Procedures (Employment Guide)."


There is also this provision: "If the issue is a sensitive one, the employee will not normally be questioned during any formal process in the presence of the person alleged to have harassed or bullied them. The decision on this will be made by the Investigating Manager."

10.5 The policy makes it clear that a breach may result in dismissal (44).

11. Mr Cook was a member of the company's air cabin crew. Mr Cook joined the company on 11 February 1998 and, as we have recorded, was summarily dismissed on 18 August 2010. In addition certain other sanctions were imposed on Mr Cook (370). Apart from the charges that lead to his dismissal, Mr Cook had an unblemished disciplinary record.

12. In the Summer of 2009 the company sought to reach agreement with its cabin crew on proposed changes to the way cabin crew operated on flights, including manning levels. No agreement was reached and the company decided to impose the changes. Over the Winter and Spring of 2009/2010 in particular, the company became engaged in a well publicised and bitter industrial dispute with some of its cabin crew over the changes. BASSA, was the cabin crews' representative in this respect. The dispute included industrial action, which the company addressed by a number of means including using volunteer staff to do the jobs of striking cabin crew. On 14 December 2009 BASSA announced a 12 day cabin crew strike between 22 December 2009 and 2 January 2010. On 17 December 2009 the High Court granted the company an injunction and the strike was called off. Following a further strike ballot, strike action finally went ahead between 20 and 22 and 27 and 30 March 2010. In all this the company's management, no doubt, believed they were fighting for the company's commercial survival in profitable form and BASSA believed it was fighting for the legitimate rights of its members.

13. The company decided it was necessary to set up a co-ordination centre to deal with disciplinary cases relating to the industrial action and to designate a number of managers to support such cases. Mr Van Der Donckt was one of the supporting managers. Mr Van Der Donckt's evidence is that most of these cases related to allegations of bullying and harassment. The co-ordination was organised from a room called "Leiden" in one of the company's buildings at Waterside, Harmondsworth in Middlesex. The people involved became referred to collectively as the "Leiden Unit" and cases they dealt with as "Leiden Cases". I!is Mr Cook's contention (and, we think, through him BASSA's wider agenda) that the "Leiden Unit" was formed to bear down with particular harshness on striking cabin crew. We are satisfied that the purpose of the "Leiden Unit" was to provide and co-ordinate additional resource to hear disciplinary cases connected with the dispute. In doing so it primarily used EG901. lt did not operate under separate procedures, although it did have access to the "Leiden Matrix", which we refer to below. We have seen no direct evidence that there was a general direction that it should deal with cases against striking cabin crew harshly. However, we comment below on the treatment of one pilot's case that went through the "Leiden Unit".

14. Although holding no official position with BASSA, Mr Cook was a committed member and did not doubt in the justice of the cabin crews' cause. In response to the company's use of volunteers to break the cabin crew strike (see 215) Mr Cook compiled the document we have referred to called "Scabbin'Crew News" in the Spring of 2010. A version of this can be seen at 119-126. We heard much evidence on whether or not this document was harmless satire in keeping with the British tradition in that respect, or something going beyond that. Miss Smith described Mr Cook's evidence on this subject as "disingenuous", a description we would agree with. At his disciplinary hearing with Mr Van Der Donckt there was disagreement about the meaning of "satire". Mr Cook did, however, agree that "Scabbin'Crew News could be "offensive" if it got onto a pilots' forum (216). The reality is that the effect of the document would, of course, have largely depended on the persuasion of the reader. There is plenty of material in the bundle to demonstrate that this was a workplace well used to brutal satire. Notwithstanding, in our view it was reasonably foreseeable and reasonably arguable that an employee belonging to a category ridiculed in the document could find the document both upsetting and intimidating. The document can be referred to in full. We highlight the following.

14.1 The title itself is a play on the company's weekly publication "Cabin Crew News" and on the word "xxxx". In the context of an industrial dispute a "xxxx" is commonly understood to be an employee who refuses to join strike action or takes a striker's place. By association with another meaning of the word "xxxx" (an incrustation over a wound) the use of the word in this context is derogatory.

14.2 Pilots are described as in receipt of "xxxx pay of £160 per hour" (120). The suggestion is made that "Some pilots can't see an arse without feeling the urge to shove their heads up it." (121). At 121 we also see the suggestion that BA will pay for the use of prostitutes by volunteering pilots:

"There are indeed a large number of pilots currently in Lagos and Accra who are awaiting return to the UK. However, this is simply because BA cannot allow them to operate the return sector until they have received the all clear from the local Genito Urinary Clinics.
On the same subject could we please squash the rumour among some volunteering pilots that prostitutes can be charged to room service and that BA will pick up the bill.
All bills for the use of prostitutes must be settled locally!"


On 124 we see this:
"BA is expecting industrial unrest from the people who clean the toilets on board and have asked for a new army of volunteer pilots to back BA by cleaning up the xxxx they helped create in the first place. You can volunteer online at the following website, available exclusively on BA premises:
www.lwillgladlylickwillysarseifitgetsmeapromotion. co.uk"

14.3 Management employees, who had volunteered to take cabin crew places, are described as "xxxx crew" on page 121.

14.4 Mr William Walsh was the CEO of the company at the time. At 123 we see this:

"Mr Walsh was kind enough to present this information to Scabbin Crew News from his suite at Strangeways where he is currently awaiting an xxxxxxxx transplant and cosmetic dentistry."

This is followed at 126 by this:

"Willy Walsh's xxxxxxxx transplant has been declared a failure as the xxxxxxxx has rejected him. Cosmetic Dentistry has also been postponed as no real dentist could be found tci work on the little gobshite. Several Unite union members have stepped in to offer him free dental work. So far this offer has not been taken up."

14.5 As far as cabin crew who continued to work are concerned, we see this at
117:

"In this first issue we are pleased to be able to play a part in helping a new charity, the Doreen Green Appeal. Doreen who lives in Manchester used to be cabin crew and did her part by working during the first strike. However this is when disaster struck because now every time Doreen sees herself in a mirror or catches her reflection anywhere, all she sees is a big fat xxxx. Doreen is now off sick and has lost her staff travel, as she was absent during the second wave of industrial action. "My doctor has told me this is incurable," said Doreen. "For the rest of my life, all I will see in the mirror is a xxxx. I don't know how I will ever live with myself. Even my pussy has refused to sit on my lap now." BA have asked Doreen if there is any support we can offer at this time: other than putting her on a staff ticket home of course."

15. At the end of one version of "Scabbin'Crew News" Mr Cook included this
(126):

"Editors note


This Scabbin Crew News is intended for the amusement of Unite Union members only. The characters mentioned above are entirely fictitious and any resemblance to anyone living or dead is entirely co-incidental other than references to the muppets in the leadership team who are sadly only too real."

Mr Cook's evidence, which we accept, is that this appeared on the paper version of "Scabbin'Crew News". Mr Cook also says that it was included in the version he linked to the BASSA website.