Industrial Action and Dismissals

Thanks to Ed McFarlane of EEF (pictured) for preparing this case summary. Thanks also to John Bowers QC of Littleton Chambers, leading counsel for Gate Gourmet, for telling me the decision had been handed down.

The EAT (Underhill P) has handed down its decision in Sandhu & ors v Gate Gourmet, which is authority for the proposition that:

• dismissal of an employee at work for having taken part in unprotected industrial action, whilst not being automatically fair, is potentially fair for conduct. Simmons v Hoover [1977] ICR 61 is still good law notwithstanding developments in Human Rights and UK/EU law enshrining the right to strike (para. 35). The then-current modified statutory dismissal procedure could be used in cases of unofficial industrial action.
  
• where a trade union official, called in to mediate, takes part in industrial action, that of itself does not mean that the action is approved by the union. The status of the employee at the time of dismissal is the key question, and one of fact.

The EAT also made observations on the operation of issue estoppel where a preliminary finding may impact upon issues determined later in proceedings, and the doctrine is engaged only if findings are necessarily inconsistent (paras. 19-22).