ASSOCIATED NEWSPAPERS LIMITED
(APPELLANTS)
v.
WILSON
(RESPONDENT)
ASSOCIATED BRITISH PORTS
(APPELLANTS)
v.
PALMER AND OTHERS
(RESPONDENTS)
ON 16TH MARCH 1995
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Lloyd of Berwick
LORD KEITH OF KINKEL
My Lords,
For reasons given in the speech to be delivered by my noble and
learned friend Lord Bridge of Harwich, which I have read in draft and with
which I agree, I would allow these appeals.
LORD BRIDGE OF HARWICH
My Lords,
The two appeals before the House arise out of two distinct proceedings
instituted by originating applications before two different industrial tribunals
whose decisions were the subject of separate appeals to the Employment
Appeal Tribunal. The appeals from the decisions of the Employment Appeal
Tribunal were heard together by the Court of Appeal because they appeared
to give rise to similar, albeit not identical, issues. The judgments in the Court
– 1 –
of Appeal, quite rightly, address each appeal separately. Before your
Lordships’ House, however, a point of law has been taken which, for reasons
which I will explain, was not open in the courts below. The determination of
this point, on the conclusion I have reached, is decisive of both appeals.
Accordingly, the course I propose to take in setting out this opinion is, first,
to summarise, as briefly as I may, the facts and the course of the litigation in
each case: secondly, to address the new point of law; thirdly to add some
observations on the other issues which were canvassed in the proceedings
below and before your Lordships.
Associated Newspapers Ltd. v. Wilson
For many years before 1989 Associated Newspapers Ltd. (“ANL”),
publishers of The Daily Mail, The Mail on Sunday, and The Evening
Standard, had employed their staff of journalists below a certain level in the
editorial hierarchy on the terms of various collective agreements with the
National Union of Journalists (“the NUJ”) whereunder rates of pay and other
terms and conditions of employment were determined by negotiations between
the employers and the union from time to time. In 1989 there was in force
a ‘house agreement” between the employers and the NUJ chapels representing
employees in the ANL group. The editors of the three titles were anxious that
the employers should terminate collective bargaining under the house
agreement and enter into individual contracts with each journalist. In due
course the management gave notice to determine the house agreement with
effect from 1 April 1990 which, it is accepted, they were lawfully entitled to
do. They invited all those employed on the terms of the house agreement to
sign individual contracts. There was some negotiation with the union as to the
terms and conditions of employment to be set out in a handbook which would
be incorporated in each individual contract and in the event it is common
ground that, as between each individual employee and the employers, these
did not differ in any significant way from the terms and conditions of
employment which were currently in force under the house agreement
immediately prior to its termination. But the employers offered to all those
who were willing to sign individual contracts before a certain date a pay
increase of 4.5 per cent. backdated to 1 October 1989. Those who were
unwilling to sign continued in employment, effectively on the same terms as
before, but they were told they could not expect, and they did not receive, any
increase in pay until the next review of salaries on 1 October 1990.
Mr. Wilson, who was joint father of the chapel of the NUJ, was one
of the small minority of employees who refused to sign an individual contract.
In April 1990 he applied to an industrial tribunal complaining that the
employers had infringed his rights under section 23(1) of the Employment
Protection (Consolidation) Act 1978. That subsection, as in force at the
material time, provides:
– 2 –
(1) . . . every employee shall have the right not to have action (short
of dismissal) taken against him as an individual by his employer for
the purpose of-
(a) preventing or deterring him from being or seeking to become
a member of an independent trade union, or penalising him for
doing so; or
(b) preventing or deterring him from taking part in the activities of
an independent trade union at any appropriate time, or
penalising him for doing so; or
(c) compelling him to be or become a member of any trade union
or of a particular trade union or of one of a number of
particular trade unions . . .
Mr. Wilson claimed, inter alia, that by omitting to pay him the 4½ per cent
pay rise paid to those who signed individual contracts, the employers had
contravened section 23(1)(a). He succeeded in that claim before the industrial
tribunal who made a declaration in his favour and adjourned the question of
compensation. ANL appealed to the Employment Appeal Tribunal who
allowed the appeal by a majority in a judgment delivered by Wood J. [1992]
I.C.R. 681, but this decision was unanimously reversed by the Court of
Appeal (Dillon, Butler-Sloss and Farquharson L.JJ.) [1994] I.C.R. 97.
Associated British Ports v. Palmer and others
What happened between Associated British Ports (“ABP”) and their
manual grade employees at Southampton was very similar, save in one
respect, to what had happened between ANL and their employed journalists.
Prior to 1981 the rates of pay and other terms and conditions of employment
of this group of employees were determined by collective bargaining between
ABP and the National Union of Rail, Maritime and Transport Workers (“the
RMT”). But in February 1991 ABP offered all these employees the
alternative of entering into individual contracts with effect from 1 March 1991
or of continuing under the existing regime of employment on whatever terms
were agreed collectively between ABP and the RMT. The inducement to
choose the former alternative was an offer made to each individual of a
significant increase in pay under his new contract. The majority accepted this
offer and the proportionate increases in their rates of pay from 1 March 1991
were substantially greater than the increases achieved by the RMT in
negotiation for that year’s pay round on behalf of those who had opted to
continue to have their rates of pay determined by the collective bargaining
machinery. Three of the latter category, Messrs. Palmer, Stedman and
Wyeth, made applications to the industrial tribunal alleging infringements of
their rights under section 23(1) of the Act of 1978 and, like Mr. Wilson, they
succeeded under section 23(1)(a) and were awarded compensation. ABP
appealed to the Employment Appeal Tribunal who again allowed the appeal
– 3 –
by a majority in a judgment delivered by Wood J. [1993] I.C.R. 101 and an
appeal from this decision was heard together with the ANL appeal and
allowed by the Court of Appeal under the reference already given.
The employers in both cases now appeal by leave of your Lordships’
House.
The new point of law
Section 153(1) of the Act of 1978 provides that:
“In this Act, . . . except so far as the context otherwise
requires –
‘act’ and ‘action’ each includes omission and references to doing an act
or taking action shall be construed accordingly;”
The courts below were bound by authority to accept that the application of this
definition to section 23(1) has the effect that, if an employer confers a benefit
on employee A which he withholds from employee B, the omission to confer
the benefit on B may. if the circumstances warrant such a finding, amount to
‘action (short of dismissal) taken against” B for one of the purposes prohibited
by section 23(1) irrespective of the question whether B had any reasonable
expectation of receiving that benefit. This proposition is established by the
decision of the Court of Appeal in National Coal Board v. Ridgway [1987]
I.C.R. 641. In that case the Board employed miners belonging to rival
unions, the National Union of Mineworkers (“the NUM”) and the Union of
Democratic Mineworkers (“the UDM”), at the same colliery. The Board
agreed to pay increased wages to members of the UDM but not to members
of the NUM. On application by members of the NUM, the industrial tribunal
held that withholding the increase from the applicants was an “omission”
amounting to “action (short of dismissal) taken against” them for the purpose
of penalising them for being members of the NUM and thus was a
contravention of section 23(1)(a). This decision was upheld by the Court of
Appeal by a majority (Nicholls and Bingham L.JJ., May L.J. dissenting).
May L.J. said, at p. 651:
“There must, at the least, have been some obligation to pay or some
expectation of receipt to enable one to categorise the non-payment of
U.D.M. rates to these applicants as an ‘omission’ on the part of the
board to make such payments.”
The majority view was expressed by Nicholls L.J., at p. 656, where he said:
“For an act to constitute ‘action’ within section 23 there does not need
to be any reasonable expectation by the employee that the employer
would not so behave. This being so, I see no justification for adding
this requirement as a gloss on the language of the statute in the case
– 4 –
of an ‘omission’. To be within section 23 the conduct complained of
has to have been done ‘for the purpose of.’ If it is for one of the
requisite purposes that an employer omits to do something vis-à-vis the
complainant employee as an individual then, whatever is the nature of
the omission, it is impermissible.”
The novel question, raised for the first time before your Lordships, is
whether the extended meanings of the word “action” and of the phrase “taking
action” provided by section 153(1) are properly to be applied to section 23(1)
or whether this is a case where “the context otherwise requires.” The crucial
phrase to be construed in section 23(1) is “the right not to have action . . .
taken against him.” If this phrase is to be construed as embodying the
extended meaning, one must first expand the language so as to include the
verb “omit” or the noun “omission” to see how it reads. The attempt to do
this grammatically without substantially recasting the phrase and introducing
additional words at once exposes the difficulty. If the concept of taking action
against some person is to embrace the concept of omitting to act, the omission
must be an omission to act in that person’s favour. I cannot believe that any
competent Parliamentary draftsman, intending that an omission by an
employer to take action in favour of an employee should have the same
consequences as positive action taken against him, would fail to spell out the
circumstances in which the obligation to take action in favour of the employee
was to arise. Otherwise he creates an obvious ambiguity, as the difference of
judicial opinion in National Coal Board v. Ridgway well illustrates. To put
it no higher, the question whether section 23(1) should be rewritten in some
way so as to spell out expressly the meaning of “action” as including
omission, or whether the context requires that the definition be not applied,
gives rise to a “real and substantial difficulty” in the interpretation of the
statute “which classical methods of construction cannot resolve” and thus
entitles us to go behind the consolidating Act of 1978 to derive whatever
assistance we can in resolving the difficulty from the legislative history: see
Farrell v. Alexander [1977] AC 59, 73 B-C, per Lord Wilberforce.
The previous Acts consolidated by the Act of 1978 included the Trade
Union and Labour Relations Act 1974 and the Employment Protection Act
1975. The definition of “act” and “action” now found in section 153(1) of the
Act of 1978 was previously in section 30(1) of the Act of 1974 but did not
appear anywhere in the Act of 1975. Section 23 of the Act of 1978, however,
re-enacts section 53 of the Act of 1975. Thus, prior to the 1978
consolidation, there was no question of applying any definition giving an
extended meaning to the word “action” in the context in which we now have
to construe it.
In Beswick v. Beswick [1968] AC 58 one of the issues to be
determined was whether the word “property” in section 56(1) of the Law of
Property Act 1925, which is a consolidation Act, should be read in the
extended sense given to it by the definition section 205 which provides:
– 5 –
“(1) In this Act unless the context otherwise requires, the
following expressions have the meanings hereby assigned to
them respectively, that is to say … (xx) ‘Property’ includes
any thing in action and any interest in real or personal
property.”
Lord Reid, at p. 73, reminded the House that
“… it is the invariable practice of Parliament to require from those
who have prepared a consolidation Bill an assurance that it will make
no substantial change in the law and to have that checked by a
committee. On this assurance the Bill is then passed into law. no
amendment being permissible.”
Lord Reid pointed out that section 56(1) of the Act of 1925 was obviously
intended to replace section 5 of the Real Property Act 1845 which applied
only to real property and he concluded, at p. 77:
“By express provision in the definition section a definition contained
in it is not to be applied to the word defined if in the particular case
the context otherwise requires. If application of that definition would
result in giving to section 56 a meaning going beyond that of the old
section, then, in my opinion, the context does require that the
definition of ‘property’ shall not be applied to that word in section 56.
The context in which this section occurs is a consolidation Act. If the
definition is not applied the section is a proper one to appear in such
an Act because it can properly be regarded as not substantially altering
the pre-existing law. But if the definition is applied the result is to
make section 56 go far beyond the pre-existing law. Holding that the
section has such an effect would involve holding that the invariable
practice of Parliament has been departed from per incuriam so that
something has got into this consolidation Act which neither the
draftsman nor Parliament can have intended to be there.”
By parity of reasoning, if the definition of “action” in section 153(1)
of the Act of 1978 is applied to section 23(1), not only do we encounter the
grammatical difficulty to which I have already referred, but we must also
conclude that a consolidation Act has substantially altered the pre-existing law
in a way that neither the draftsman nor Parliament can have intended. It
seems to me plain that both the draftsman of the consolidation Bill and the
committee who approved it must have been satisfied that the definition of
“act” and “action” taken from the Act of 1974 were excluded by the context
of the phrase “the right not to have action taken against him” in section 53 of
the Act of 1975.
Counsel for the respondents in the ABP appeal sought to surmount this
hurdle by submitting that the policy of the relevant employment legislation has
consistently outlawed discrimination in any form against employees on account
– 6 –
of their union membership and that the language of section 23(1), even if not
extended by definition to apply to omissions, should nevertheless be construed
liberally as having the same effect as that attributed to it by the majority in
National Coal Board v. Ridgway. So far from supporting this submission it
seems to me that a closer examination of the legislative history conclusively
refutes it. The original enactment, which did indeed embody just such an
anti-discrimination policy as that for which counsel now contends, was section
5 of the Industrial Relations Act 1971 which provided, so far as material:
“5.-(1) Every worker shall, as between himself and his employer,
have the following rights, that is to say, –
-
-
-
the right to be a member of such trade union as he may
choose; -
subject to sections 6 and 17 of this Act, the right, if he
so desires, to be a member of no trade union or other
organisation of workers or to refuse to be a member of
any particular trade union or other organisation of
workers;
-
-
(c) where he is a member of a trade union, the right, at any
appropriate time, to take part in the activities of the
trade union (including any activities as. or with a view
to becoming, an official of the trade union) and the
right to seek or accept appointment or election, and (if
appointed or elected) to hold office, as such an official.
(2) It shall accordingly be an unfair industrial practice for any
employer, or for any person acting on behalf of an employer, –
-
-
-
to prevent or deter a worker from exercising any of the
rights conferred on him by subsection (1) of this
section, or -
to dismiss, penalise or otherwise discriminate against a
worker by reason of his exercising any such right, or
-
-
(c) . . .
-
-
-
. . .
-
Where an employer offers a benefit of any kind to any workers as
an inducement to refrain from exercising a right conferred on them by
subsection (1) of this section, and the employer –
-
-
– 7 –
-
-
-
confers that benefit on one or more of those workers
who agree to refrain from exercising that right, and -
withholds it from one or more of them who do not
agree to do so,
-
-
the employer shall for the purposes of this section be regarded, in
relation to any such worker as is mentioned in paragraph (b) of this
subsection, as having thereby discriminated against him by reason of
his exercising that right.” [Emphasis added.]
A remedy for a person discriminated against in a way amounting to an “unfair
industrial practice” under this section was provided on complaint to an
industrial tribunal under section 106.
It will be noted, first, that section 5 comprehensively outlaws
discrimination against a worker on the ground of his membership of a union,
non-membership of a union or participation in union activities, either by way
of dismissal or by action short of dismissal; secondly, that discrimination
which takes the form of an “omission”, i.e. of withholding from employee A
a benefit conferred on employee B is the subject of the elaborate, explicit and
unambiguous formula which the draftsman has used in subsection (4). The
Trade Union and Labour Relations Act 1974 repealed the Industrial Relations
Act 1971 but reenacted many of its provisions, subject to amendment, in
Schedule 1. Insofar as section 5 of the Act of 1971 was directed against a
particular form of unfair dismissal, its effect was preserved by paragraph 6(4)
of Schedule 1 to the Act of 1974 and this in turn was reenacted by section
58(1) of the Act of 1978, which provides:
“(1). . . the dismissal of an employee by an employer shall be
regarded for the purposes of this Part as having been unfair if the
reason for it (or, if me e than one, the principal reason) was that the
employee-
(a) was, or proposed to become, a member of an independent trade
union, or
(b) had taken part, or proposed to take part, in the activities of an
independent trade union at an appropriate time, or
(c) was not a member of any trade union, or of a particular trade
union, or of one of a number of particular trade unions, or had
refused or proposed to refuse to become or remain a member.”
But the Act of 1974 provided no remedy to employees who were discriminated
against in ways falling short of dismissal which would previously have
infringed the rights conferred on them by section 5 of the Act of 1971.
– 8 –
The crucial question is whether, when section 53 of the Act of 1975
reintroduced a measure of protection against action, short of dismissal, of the
kind previously prohibited by section 5 of the Act of 1971, the draftsman
intended it to extend to cover discrimination of the kind against which section
5(4) of the Act of 1971 had been expressly directed. The language of this
previous provision must clearly have been present to the draftsman’s mind
and. if his intention had been to achieve the same legislative consequence, it
is, to my mind, inconceivable that he should not have used either the same
language or language substantially to the like effect. In fact, as we have seen
he did not even use the word “discriminate” or adopt the extended definition
of “action” used in the Act of 1974. Finally, section 24(2) of the Act of 1978
provides a time limit for presenting a complaint to an industrial tribunal under
section 23 and the time is to run from “the date on which there occurred the
action complained of.” But nowhere in the Act do we find any provision
analogous to those found, for example, in section 76(6) of the Sex
Discrimination Act 1975 and section 68(7) of the Race Relations Act 1976,
which make the kind of special provision which is needed, where there is a
time limit for complaining to an industrial tribunal, as to the date from which
time is to run when the subject of the complaint is an omission.
The line of reasoning which I have followed in the three foregoing
paragraphs was discussed in the course of argument and was criticised as
unduly literalistic. It was even submitted that the Labour Government which
introduced the Act of 1975 could not have intended to provide less effective
protection for trade union members than the Act of 1971. A purposive
construction to resolve ambiguities of statutory language is often appropriate
and necessary. But this is the first time I have heard it suggested that the
policy of an enactment to be presumed from the political complexion of the
government which introduced it may prevail over the language of the statute.
The courts’ traditional approach to construction, giving primacy to the
ordinary, grammatical meaning of statutory language, is reflected in the
Parliamentary draftsman’s technique of using language with the utmost
precision to express the legislative intent of his political masters and it remains
the golden rule of construction that a statute means exactly what it says and
does not mean what it does not say.
For all these reasons I find it quite impossible to hold that withholding
from the respondents to these two appeals the benefits conferred on some of
their fellow employees, whatever its purpose may have been, was capable of
amounting to a contravention of section 23(1). It follows that I would also
overrule the decision of the Court of Appeal in National Coal Board v.
Ridgway.
The membership issue
Much of the argument in the courts below and in both appeals before
your Lordships was directed to questions relating to the relevant purpose of
– 9 –
the employers. It was less than clear in either case what precisely the
industrial tribunal had found the employers’ purpose to be, leaving it open to
argument whether the tribunal had intended to find as a fact in favour of the
applicants that the employers’ purpose was to deter them from being
“members of an independent trade union” or to penalise them for being such
members and. if so, whether there was evidence to support such a finding.
Having reached a conclusion on the new point which is decisive of both
appeals, I do not find it necessary to go into these questions in any detail, but
I think it appropriate to add some observations relating to one aspect of the
approach of the courts below to the question of purpose in respect of a
complaint under section 23(1)(a).
Sections 11 to 16 of the Employment Protection Act 1975 embodied
a complex statutory code, the details of which do not now matter, which
enabled a trade union to obtain “recognition” by an employer for the purpose
of collective bargaining with him on behalf of its members. But these
provisions were repealed by the Employment Act 1980 and since then an
employer has been at liberty to decide for himself whether or not to enter into
or to continue in force an agreement with a trade union providing for
collective bargaining.
Whatever the purpose of ANL may have been, having given notice to
terminate their house agreement with the NUJ, in offering an inducement to
employees to sign individual contracts before the notice expired, the only
witness called by the employers before the industrial tribunal gave evidence
that the management had no intention of deterring their employees from
continuing as members of the NUJ; the industrial tribunal’s decision does not
indicate that they rejected this evidence and in fact the majority of the
employees have continued to be members of the NUJ ever since.
In the ABP case it was plain that the employers were seeking by means
of an attractive offer to induce their employees voluntarily to quit the union’s
collective bargaining umbrella and to deal in future directly with the
employers over their terms and conditions of employment, but I can see
nothing in the evidence recited in the industrial tribunal’s decision to suggest
that the employers were seeking to induce the employees to give up their
union membership.
The industrial tribunal, in the ABP case, in reaching the conclusion
that the employers’ relevant purpose contravened section 23(1)(a), relied
expressly on Discount Tobacco and Confectionery Ltd. v. Armitage [1990]
I.R.L.R. 15 which, they said, “is authority for the proposition that there is no
genuine distinction between membership of a union on the one hand and
making use of the essential services which that union has to offer such as
representation on the other.” This approach was anlaysed and criticised in the
judgment of the Employment Appeal Tribunal at [1993] I.C.R. 111E-112F.
But in the Court of Appeal the Armitage case provided an important link in
– 10 –
the chain of reasoning relied on to affirm the decisions of the industrial
tribunals in both cases.
Mrs. Armitage had been engaged on 1 February 1988 and was
dismissed on 15 July 1988. She applied to an industrial tribunal complaining
that she had been dismissed by reason of her union membership in
contravention of section 58(1) of the Act of 1978. The evidence showed that
she had written to her employers on 23 May asking for a statement of her
terms of employment but had received no reply. She had then invoked the
assistance of her union representative who wrote on her behalf on 23 June
complaining of the failure to answer her letter and of various other matters in
regard to her terms of employment. The employers gave evidence before the
industrial tribunal that Mrs. Armitage was dismissed on the ground of her
unsuitability or incapacity, but the industrial tribunal disbelieved this evidence
and found in terms that she had been dismissed “by reason of membership of
an independent trade union.” On the employer’s appeal the Employment
Appeal Tribunal concluded that there was material to support this finding. In
reaching this conclusion the following passage appears in the judgment
delivered by Knox J., at p. 16:
“The evidence, therefore, in relation to union membership that
was before the industrial tribunal, was that Mrs. Armitage made use
of her union membership by getting Mr. McFadden to help in
elucidating and attempting to negotiate the terms of her employment.
He did not get very far in the latter because the dismissal supervened
so soon but that, Mr. West accepted, was what in fact she did and the
question for this Tribunal is whether on that evidence of union
involvement, to use a neutral expression, it was possible for the
industrial tribunal to reach the conclusion that her dismissal was for
membership of the union. Mr. West drew a distinction between
membership of the union, on the one hand, and resorting to the
services of a union officer to elucidate and negotiate the terms of
employment, on the other, and he accepted that there was evidence of
the latter but said that it did not or could not amount to evidence of the
former, membership of the union.
“We find ourselves unconvinced of that distinction. In our
judgment, the activities of a trade union officer in negotiating and
elucidating terms of employment is, to use a prayer book expression,
the outward and visible manifestation of trade union membership. It
is an incident of union membership which is, if not the primary one,
at any rate, a very important one and we see no genuine distinction
between membership of a union on the one hand and making use of the
essential services of a union, on the other.
“Were it not so, the scope of s.58(1)(a) would be reduced
almost to vanishing point, since it would only be just the fact that a
person was a member of a union, without regard to the consequences
– 11 –
of that membership, that would be the subject matter of that statutory
provision and, it seems to us. that to construe that paragraph so
narrowly would really be to emasculate the provision altogether.”
In the Court of Appeal Dillon L.J., with whose judgment Butler-Sloss and
Farquharson LJJ. agreed, relied on this passage in relation to both appeals.
He said in addressing the ANL appeal, at p. 110:
“But the decision on ‘purpose’ is for the industrial tribunal and
Discount Tobacco & Confectionery Ltd. v. Armitage [1990] I.R.L.R.
15 is authority that an industrial tribunal is entitled to conclude
robustly that an employee who has been dismissed or penalised for
invoking the assistance of his or her union in relation to his or her
employment has been dismissed or penalised for being a member of
the union.”
I do not question the correctness of the Employment Appeal Tribunal’s
decision in the Armitage case. Once the industrial tribunal had rejected the
employers’ evidence as to their reason for Mrs. Armitage’s dismissal, it was
an obvious inference that she had been dismissed because the employers
resented the fact that she had invited the union to intervene on her behalf. In
this narrow context the reasoning of Knox J. may have been a legitimate
means of refuting a particular argument advanced by counsel for the
employers. But if the passage cited is held to establish as a general
proposition of law that, in the context of section 23(1)(a) and section 58(1)(a)
of the Act of 1978 membership of a union is to be equated with using the
“essential” services of that union, at best it puts an unnecessary and imprecise
gloss on the statutory language, at worst it is liable to distort the meaning of
these provisions which protect union membership as such.
A union which has a collective bargaining agreement with employers
is in a position to offer its members the service of negotiating their terms and
conditions of employment. A union which has no such agreement with
employers is unable to offer its members that service, but is able to offer them
other important and valuable services. Thus, it cannot be said that the service
of collective bargaining is an essential union service or that membership of a
union unable to offer that service is valueless or insignificant. Accordingly,
it seems to me that the reasoning of Knox J. in the Armitage case could not
properly be applied to the circumstances of the two cases with which we are
concerned. Even if the construction put on section 23(1)(a) by the majority
in National Coal Board v. Ridgway were correct, I do not think that in either
of these cases the withholding by the employers from employees who did not
sign individual contracts of the benefits conferred on those who did was by
itself capable of supporting a finding that the employers’ purpose was to deter
those in the latter group from being members of a union or to penalise them
for being such members.
– 12 –
Since drafting the foregoing opinion I have had the advantage of
reading in draft the speech to be delivered by my noble and learned friend
Lord Lloyd of Berwick. He has examined what I have referred to as the
membership issue and has analysed the findings of the industrial tribunals in
both cases in greater detail than I have found it necessary to do. On this part
of his speech I agree both with his reasoning and with his conclusions which
I accordingly adopt as affording an additional ground for allowing both
appeals.
LORD BROWNE-WILKINSON
My Lords,
I have had the advantage of reading in draft the speech to be delivered
by my noble and learned friend Lord Bridge of Harwich.
For the reasons which he gives in dealing with the new point argued
tor the first time before your Lordships I am reluctantly forced to the
conclusion that the decision in National Coal Board v. Ridgway [1987] I.C.R.
641 was wrong. The statutory history makes it impossible to hold that the
“omission” to offer to employees who did not accept the proffered new
contracts constituted “action” against such employees in contravention of
section 23(1) of the Employment Protection (Consolidation) Act 1978. I reach
the conclusion with regret since, in my view, it leaves an undesirable lacuna
in the legislation protecting employees against victimisation.
I prefer to express no view on the membership issue also discussed by
my noble and learned friend. As at present advised I would not share his
view on the issue but it is unnecessary to express any concluded view since
the decision of this case does not turn on that point.
LORD SLYNN OF HADLEY
My Lords
I have had the advantage of reading in draft the speeches of my noble
and learned friends Lord Bridge of Harwich and Lord Lloyd of Berwick.
As to the question whether it is right and possible to read section
23(1)(a) of the Employment Protection (Consolidation) Act 1978 as amended
by the Employment Act 1988 as including an omission to act I agree with the
conclusions of Lord Lloyd of Berwick for the reasons he gives. In my
– 13 –
opinion the judgments of the majority of the Court of Appeal in National Coal
Board v. Ridgway should be followed. There was here an omission to act by
failing to pay a salary increase to some employees when it could reasonably
have been expected that, if salaries were increased, the increase would be paid
in the same proportion to all employees doing the same work.
There remains the question whether what happened here was action,
including an omission, short of dismissal:
“taken against him as an individual by his employer for the purpose of
(a) preventing or deterring him from being or seeking to become a
member of an independent trade union, or penalising him for doing
so.”
Mr. Wilson’s case
The National Union of Journalists was recognised for many years by
Associated Newspapers Limited for the purpose of collective bargaining as
regards the terms and conditions of employment, on the basis of a “House
Agreement.” That agreement was terminated by notice given on 8 November
1989 and with effect from 1 April 1990 the Union no longer had any
collective bargaining rights following its de-recognition. All journalists who
signed a new contract incorporating terms and conditions set out in a
handbook issued by the Company received a pay increase of 4.5%. Most
journalists did sign. Those who did not sign (including Mr. Wilson) did not
receive the 4.5% pay increase. The handbook stated specifically that
“Journalists are free to join or not to join a Trade Union.”
Mr. Wilson claimed essentially that the de-recognition of the Union,
the Company’s pressurising him to sign a new contract and failing to pay him
the 4.5% increase when he did not and the change in his other terms of
employment, constituted action or omission contrary to section 23(1)(a) of the
Act of 1978.
The Industrial Tribunal found that the de-recognition of the Union was
not such an action but that changing his terms and conditions and paying the
4.5% increase only to those who signed the contract and failing to pay it to
those who did not sign did constitute such action. They continued, however,:
“60. The Tribunal were satisfied that in the context of this case and
on the facts we have found the respondents’ purpose was so to
reduce the power of the union as to negate it totally. If this
had not been their purpose they could have recognised the
union for matters other than wage negotiations if they had so
wished.
61. The Tribunal considered that the respondents were fully aware
that by depriving the union of any function in the workplace
– 14 –
(save on Health and Safety) they were effectively rendering the
union powerless and thus membership pointless.
62. The Tribunal did not consider that the respondents could hide
behind their right to de-recognise the union so as to deny
successfully their ultimate purpose which was to effect the
wholly foreseeable consequence of deterring individual
journalists from being union members.”
They considered further (para. 63) that the non-payment of the 4.5% salary
rise was “a penalty meted out to those who refused to accept their action”, but
(para. 64) that there was no evidence that the respondents had done anything
to prevent the appellant from taking part in trade union activities “at an
appropriate time.”
The Tribunal’s findings in paragraphs 60-62 seemed to be based wholly
on the effect of de-recognition. Yet even if the purpose of de-recognition was
to deter individuals from being members of the Union, the Tribunal had
already rejected de-recognition as constituting action against an individual
within the meaning of section 23(1)(a) of the Act of 1973.
The respondent in his case (paragraph 16) seems to accept the
distinction between de-recognition and the other actions relied on since he says
that the appellant’s purpose thus motivated a “series of acts including de-
recognition of the National Union of Journalists and the ending of collective
bargaining on the one hand, and on the other the issues of new contracts
accompanied by the payment of a douceur.” He contends: “In so doing A.N.
was acting both against the Union (by de-recognition and the ending of
collective bargaining) and against employees as individuals (by withholding the
douceur) in order to try to achieve its overall purpose.”
Even though it seems to me that there may well be cases where an act
on the surface directed to the Union may amount to “action taken against [an
employee] as an individual,” the present, where what is relied on is de-
recognition for collective bargaining purposes, is not such a case. The sole
issue, therefore, is whether the failure to pay the increase to Mr. Wilson,
since he did not sign an individual contract, amounts to action taken against
him as an individual for the purpose of “preventing or deterring him from
being or seeking to become a member of an independent trade union, or
penalising him for doing so.”
In my opinion withholding an increase of salary from those who
remain members of the Union could amount to action forbidden by this sub-
section if the relevant purpose is established. In the present case at the end
of the day I am not satisfied that it was so established. The aim of the de-
recognition was to ensure that contracts could be negotiated individually; that
was achieved independently of and prior to the acceptance of the terms of the
new contract and prior to the date when the appellants failed to pay the 4.5%
– 15 –
increase to those who did not sign. Collective bargaining came to an end
whether all or none of the journalists signed new contracts. The employers’
case was that they required new contracts so as to make it clear what was the
position after collective bargaining came to an end. Such a justification or
“purpose” may, as Mr. Hendy submitted, have to be looked at critically if the
consequence is likely to be a reduction in union membership but in this case
I do not think that one should disregard the provision of the contract that
journalists could belong to a union or the fact that many continued to do so.
I do not consider that there was here evidence that the employers’ purpose in
paying a salary differential was to prevent or deter union membership even if
de-recognition in itself might make the union less attractive to members or to
potential members.
Mr. Palmer’s case
In Mr. Palmer’s case it was accepted before the Tribunal that, on the
basis that “action” included “omission to act”, there had been action taken
against the respondents as individuals. It was contended however that the
appellant’s purpose in taking such action was not to prevent or deter the
respondents from continuing to be members of the Union nor to penalise them
tor doing so.
The letter sent to the men involved offering a personal contract of
employment stated:
“In offering personal contracts, the Company is seeking to introduce
a system whereby the individual merit and contribution of an employee
may be recognised and rewarded . . .
If you choose to accept a new individual contract then the Agreement
with the Trade Unions, which currently forms part of your contract of
employment, will no longer apply to you. Your conditions of
employment will, however, differ only in limited respects from those
which you have at present.
The most significant alterations are that you will no longer have the
right to be represented by a Trade Union and, in future, your pay will
not be determined by the present negotiated wage ranges . . .
As part of your personal contract the Company will pay you an
increased wage from 1 March 1991 as advised to you in the attached
personal letter, this new wage is inclusive of your pending March pay
review.”
The Tribunal accepted that the employers honestly believed that they
could conduct their business more effectively if unhampered by the need to
consult the union but they added:
– 16 –
“but unfortunately for them they have failed to spot the missing link
in the chain of causation. The reality is that their purpose was to
penalise those who would not forgo Union representation by not
conferring on them the benefits bestowed on those who were prepared
to do so with the object of achieving greater flexibility. In other
words the respondents have confused purpose with objective. Put in
another way if their purpose (persuading employees to abandon Union
representation) succeeded they would have achieved their objective
(flexibility).”
In this case, too, employees retained the right to membership of a trade
union and the majority of those who accepted personal contracts remained
members of the Union. Those who accepted the personal contract, however,
lost the right to representation by a trade union in their dealings with the
Appellant. The distinction between this case and Mr. Wilson’s case is that
here there was no total de-recognition of the Union for collective bargaining
purposes but employees were given a choice as to whether they retained or
gave up that representation.
Like Dillon L.J. I do not consider that action “preventing or deterring”
someone from being a member of a trade union or penalising him for doing
so is limited to action taken in respect of his status as a member, the fact that
he has or wants to have a union membership card. It may include action to
prevent or deter him from, or action penalising him for, exercising his rights
as a member of a trade union. The exercise of such rights is not necessarily
included in the phrase “taking part in the activities” of a trade union, words
more apt to cover such activities as attending union meetings or acting as an
official of the union.
In the present case, however, the right to be represented in collective
bargaining by the union was a right granted contractually by the employers
which could be terminated on notice. Ceasing to recognise the Union was not
an action taken to prevent or deter the employees from exercising their rights
as members of the Trade Union. The fact that in Mr. Palmer’s case, unlike
Mr. Wilson’s case, the workers had the option whether to go on being
represented by the union or to accept a personal contract did not mean that
those who accepted a personal contract were being prevented or deterred from
exercising their union rights or penalised for doing so.
In any event it does not seem to me that, having accepted that the
reason that the employers needed flexibility and more efficient conduct of their
business was an honest reason, the Tribunal was entitled on the evidence to
say that flexibility was their “objective” rather than their “purpose”. Their
purpose and their objective were to achieve flexibility; and the means to
achieve it were by offering a higher salary for those who were prepared to
give up union representation.
Accordingly I agree that both appeals should be allowed.
– 17 –
LORD LLOYD OF BERWICK
My Lords.
I too would allow these appeals, but only on the alternative ground
discussed by Lord Bridge of Harwich at the end of his speech. For reasons
which I shall mentior later, I consider that National Coal Board v. Ridgway
[1987] I.C.R. 641 was correctly decided. I find nothing in the context of
section 23(1) of the Employment Protection (Consolidation) Act 1978 which
requires us to exclude the statutory definition contained in section 153(1),
whereby “action” includes “omission” and references to taking action are to
be construed accordingly. Thus in my view the withholding of the 4.5 per
cent. pay rise in Wilson’s case from those who did not sign individual
contracts of employment was action taken against them as individuals.
The remaining issue in Wilson’s case is whether that action was taken
for the purpose of preventing or deterring them from “being or seeking to
become” members of the National Union of Journalists, or to penalise them
for doing so. If the answer to this question is “no,” then the appeal must be
allowed. For it is not suggested that the de-recognition of the union was in
itself action taken against them as individuals. It clearly was not. Nor does
Mr. Hendy rely on any other ground for supporting the industrial tribunal’s
decision. The sole question relates to the non-payment of the 4.5 per cent.
As to this, it must be said, with regret, that the findings of the tribunal
are obscure. In para. 57 it is said that the employers’ purpose was not in
dispute, namely, to end collective bargaining. So far so good. The
employers were entitled to bring collective bargaining to an end at any time.
But the matter is not left there. Paras. 60-62 read as follows:
‘(60) The Tribunal were satisfied that in the context of this case and
on the facts we have found the [employers’] purpose was so to reduce
the power of the union as to negate it totally. If this had not been
their purpose they could have recognised the union for matters other
than wage negotiations if they had so wished.
“(61) The Tribunal considered that the [employers] were fully aware
that by depriving the union of any function in the workplace . . . they
were effectively rendering the union powerless and thus membership
pointless.
“(62) The Tribunal did not consider that the [employers] could hide
behind their right to de-recognise the union so as to deny successfully
their ultimate purpose which was to effect the wholly foreseeable
consequence of [deterring] individual journalists from being union
members.”
– 18 –
These paragraphs seem to be directed to the wrong issue. They are concerned
with the foreseeable consequences of de-recognition. But the only question,
as I have said, is what was the purpose of withholding the 4.5 per cent. As
to that, the findings are silent.
The only evidence as to the employers’ purpose in withholding the 4.5
per cent. came from the group managing director, Mr. Hardy. He said that
he wanted as many members as possible to sign up so that everybody should
know where they were. Over and over again he was asked in cross-
examination whether it was not also a disguised attack on membership of the
union. Over and over again he replied that it was not. He was not concerned
with membership of the union; he was concerned only to get rid of collective
bargaining.
It is not suggested that in giving these answers Mr. Hardy was not
expressing his honest opinion. His evidence appears to have been accepted
by the tribunal at its face value. It is borne out by the terms of the handbook
which specifically preserves the right of employees to remain members of the
union, as well as their right to be accompanied by a union representative when
raising grievances. It is further borne out by the fact that the very great
majority of those who accepted the 4.5 per cent. remained union members.
As for para. 60 of the tribunal’s decision, I have great difficulty in
accepting the view of the Court of Appeal that this should be treated as a
finding in relation to the withholding of the 4.5 per cent., because de-
recognition and the payment of the 4.5 per cent. were all “part of one
exercise”. In a sense this is true. But they were not conditional on each
other. The employers had already given notice to determine the “house
agreement”. They were putting an end to collective bargaining, even if none
of the members of the union had signed the new contracts. In those
circumstances the obvious purpose of the new contracts was that given by Mr.
Hardy, namely, to obviate any uncertainty or confusion arising out of the
termination of collective bargaining, and to smooth the transition from the
house agreement to the handbook. There is no need to look further. So I do
not agree with the Court of Appeal that the finding in para. 60 “should stand
as a finding in relation to the purpose of the 4.5 per cent.”.
But even if I am wrong about that, there is no evidence on which the
tribunal could find that “[the employers’] ultimate purpose” was to deter
individual journalists from being or becoming union members. The tribunal
seems to have relied on a remark of Sir David English that in two years he
would prove that the trade union was not necessary and that the chapel would
wither away. This is a very slender basis for the finding in para. 62, for it
could as well relate to the consequence of de-recognition as the purpose.
In supporting the finding in para. 62, the Court of Appeal was much
influenced by the observations of Knox J. in Discount Tobacco and
Confectionery Limited v. Armitage [1990] I.R.L.R. 15, a decision which the
– 19 –
Court regarded as unquestionably correct. It may well have been correct on
its facts. Having rejected the evidence given by Mrs. Armitage’s employers,
the tribunal was entitled to infer that the real reason for her dismissal was that
she was a member of the union and made use of the union’s services to press
her complaint. But, like Lord Bridge of Harwich, I cannot regard the case as
authority for the broad proposition that membership of the union and making
use of the union’s services are in some way to be equated. In my view,
section 23(1)(a) was intended to protect trade union membership as such, that
is to say, the right to associate as members of an independent trade union, just
as section 23(1)(b) was intended to protect those taking part in trade union
activities at an appropriate time. I can see no justification for reading in the
words “or making use of the essential services of the union” in section
23(1)(a) and still less justification for regarding trade union membership and
the use of trade union services as the same thing. They do not mean the same
thing in section 23(1)(c). So why should they mean the same thing in section
23(1)(a)? I do not accept Knox J.’s view that this would reduce section
23(1)(a) to vanishing point. Unions may flourish even though they are not
recognised for collective bargaining. In so far as the industrial tribunal relied
on the broad statement in Armitage’s case in reaching their “robust”
conclusion in para. 62, (see per Dillon L.J. at p. 110), they erred in law.
For the above reasons, which are substantially the same as those given
by the majority of the appeal tribunal, I would allow this appeal. It was for
the employers under section 25(1) of the Act to show the purpose for which
they took action against the applicant. This they did. There was no evidence
on which the tribunal could find that the purpose was to deter the applicant
from remaining a member of the union. Accordingly, the applicant has failed
to show that he has a remedy under section 23(1)(a). It is not suggested that
he has any remedy under section 23(1)(b).
I now turn to Palmer’s case. The salient difference is, of course, that,
whereas the employers in Wilson’s case were de-recognising the union for all
purposes, whether or not the members signed new contracts, the employers
in Palmer’s case offered their employees a choice. They could either sign the
new contracts, in which case collective bargaining would cease so far as they
were concerned; or, if they chose, they could continue to enjoy the advantages
of collective bargaining as before. As in Wilson’s case the inducement to sign
the new contracts was an immediate increase in pay. Mr. Elias made the
obvious point that if the compulsory termination of collective bargaining in
Wilson’s case was not an infringement of section 23(1)(a), the employers in
Palmer’s case could hardly be in a worse position by offering a choice.
However, the findings of fact in Palmer’s case are much clearer than
in Wilson’s case. The case for the employers was that their purpose in
offering an inducement to those who signed the new contracts was to achieve
greater flexibility. They wished to introduce a system under which individual
– 20 –
merit could be recognised and rewarded. In para. 10 of their decision the
industrial tribunal say:
“We accept that that is an honest expression of what the [employers]
saw to be their purpose but unfortunately for them they have failed to
spot the missing link in the chain of causation. The reality is that their
purpose was to penalise those who would not forego union
representation by not conferring on them the benefits bestowed on
those who were prepared to do so with the object of achieving greater
flexibility. In other words the [employers] have confused purpose with
objective. Put in another way if their purpose (persuading employees
to abandon union representation) succeeded they would have achieved
their objective (flexibility).”
Mr. Elias argued that the industrial tribunal should have accepted the
evidence of the employers. Greater flexibility was the purpose of their action;
de-recognition, whether total or partial, was but a means to that end.
The majority of the employment appeal tribunal accepted that
argument. But on this issue I prefer the dissenting view of Ms. Brenda Dean
(now Baroness Dean of Thornton-le-Fylde), though not her conclusion. In the
context of this case the distinction between means and ends is narrow and
somewhat artificial. In my view, the industrial tribunal were entitled to hold
that the true purpose of paying the extra to those who signed the new contracts
was to persuade as many employees as possible to abandon union
representation in wage negotiations.
But where does that lead? Union representation is not something to
which, as individuals, they were entitled. They have the right not to have
action taken against them for the purpose of deterring them from remaining
members of the union. But the industrial tribunal made no finding in para.
10, or elsewhere, that that was the employers’ purpose. Nor would such a
conclusion have been justified on the evidence. The power and the influence
of the union might well be diminished if enough members opted for individual
contracts. Membership of the union might thus become less attractive. Ms.
Dean speaks of the union “withering on the vine”. But it is Parliament, not
the employers, that has, in this respect, made membership of the union less
attractive by repealing sections 11-16 of the Employment Protection Act 1975.
The language of section 23(1)(a) must clearly bear the same meaning
now as it did when it was first enacted as section 53 of the Act of 1975. It
did not change its meaning when sections 11-16 of that Act were repealed.
The applicants cannot, by giving section 23(1)(a) a meaning much wider than
its terms justify, seek to restore rights which the unions thereby lost. In the
course of giving the judgment of the appeal tribunal Wood J. said [1993]
I.C.R. 101 at p. 113):
– 21 –
“Prior to the repeal of sections 11-16 of the Employment Protection
Act 1975 by section 19(6) of the Employment Act 1980, a trade union
had rights against an employer and therefore in order to ensure that an
employer negotiate with a trade union there was no need for an
employee to have rights additional to that of membership. It seems to
us therefore that the legislature could not have intended that the words
of section 23(1)(a), which derived from section 53 of the Act of 1975,
should include those additional rights by implication in the phrase
‘being a member’. There is no phraseology which refers to the
exercising of rights of membership and in any event such rights would
exist between members and not with reference to a third party – the
employer.”
I agree with that reasoning. In so far as it conflicts with the broad proposition
stated by Knox J. in Armitage’s case, I prefer the reasons of the appeal
tribunal in the instant case. There is no evidence on which the tribunal could
have found that the employers’ purpose was to prevent or deter the applicants
from remaining members of the union. Accordingly, I would allow the
employers’ appeal in Palmer’s case as well as Wilson’s case.
I return now to the preliminary question, raised by your Lordships in
the course of the hearing, whether the withholding of the 4.5 per cent. in
Wilson ‘s case and of the pay increase in Palmer’s case was “action . . . taken”
against the applicants within the meaning of section 23(1)(a). On this I regret
that I have reached a different conclusion from Lord Bridge of Harwich.
It is said that to read “action” in section 23(1)(a) as if it included
‘omission” presents a grammatical difficulty, and that therefore the context of
section 23(1)(a) excludes the application of the definition in section 153(1).
I accept at once that the inclusion of omissions within the scope of section
23(1)(a) means that the phrase has to be substantially recast. It is not possible
to substitute one word for the other. For you cannot “take” an omission. But
this is no bar to the application of section 153. It was foreseen by the
draftsman. That is why it is provided by section 153 that “taking action” is
to be “construed accordingly”. I cannot easily visualise a context in which
“taking action” has to be construed so as to include an omission which would
not involve substantial recasting. Take, for example, section 29(5) of the
Trade Union and Labour Relations Act 1974, which provides:
“An act, threat or demand done or made by one person or organisation
against another . . . shall … be treated for the purposes of this Act
as being done or made in contemplation of a trade dispute …”
By section 30(1) “act” includes omission and “references to doing an act …
shall be construed accordingly”. If section 29(5) is to be construed so as to
include omissions, as it clearly must in the light of the definition in the next
following section, it requires no less redrafting than section 23(1)(a). There
– 22 –
will always be some difficulty in finding the neatest form of words to
incorporate the extended definition. But that difficulty is no greater in the
case of section 23(1)(a) than in the case of section 29(5) of the Act of 1974.
It is inherent in the drafting technique. So I do not accept that the context
requires us to exclude the definition because of any grammatical difficulties.
Is there anything else in the wider context which requires us to exclude
the definition? I think not. Indeed, it would create a surprising gap in the
protection afforded by section 23(1)(a) if “action” did not include “omission”.
In National Coal Board v. Ridgway the industial tribunal construed “action”
as including “omission” in accordance with the definition. It never occurred
to the employers to argue in that case, whether in the appeal tribunal, or in
the Court of Appeal, that the definition did not apply. It was common ground
that it did. The dispute in National Coal Board v. Ridgway on which the
Court of Appeal was split was not whether the definition applied but whether,
applying the definition, a failure to act could constitute an omission in the
absence of some obligation to act, or expectation of action. The difference of
judicial opinion in that respect does not indicate any difficulty in applying the
definition as such. It would arise in whatever context the definition came to
be applied. So I see no reason not to apply the definition on that ground.
A further argument was that Parliament has made no express provision
in section 24(2) for the commencement of the three month period for making
complaints in the case of omissions. But assuming an omission can be
identified at all, as it must be if there is to be a complaint under section 23,
I can see no great practical difficulty in determining when that omission
occurred. So the absence of an express provision does not assist in the
construction of section 23(1)(a).
My conclusion is that the context does not require us to exclude the
definition from section 23(1)(a). The only difficulty is. as I have said, in
choosing the shortest form of wording to incorporate the definition. But that
is not the sort of difficulty which Lord Wilberforce had in mind in Farrell v.
Alexander [1977] AC 59 at 73. The intention of Parliament in enacting the
definition is clear enough. On the face of it, the definition applies to section
23(1)(a), and there is nothing in the context to exclude it. I can therefore see
no justification for having resort to the legislative history.
As for the difference of judicial opinion in National Coal Board v.
Ridgway, I have no doubt that we should prefer the view of the majority,
although there may not in practice be much difference between the two views.
Once accept, as May L.J. accepted, that there may be an omission where
there is a reasonable expectation of action, it is a short step to holding that
such an expectation arises where a benefit is paid to some employees but not
others if they are all doing the same job: see per Bingham L.J. at p. 670.
-23-
On the facts of National Coal Board v. Ridgway the majority upheld
the finding of the tribunal that the purpose of the employers was to deter
miners from being members of the National Union of Mineworkers. But the
contrast between Mr. Hunt’s evidence for the employers in that case, and Mr.
Hardy’s evidence in Wilson’s case could not be more marked. Mr. Hunt’s
answers were evasive, both in chief and in cross-examination: see per
Nicholls L.J. at p. 660. It is not surprising that his evidence was rejected by
the tribunal. Mr. Hardy’s evidence by contrast was direct and to the point.
The substance of his evidence was not criticised by the tribunal, and it was
accepted that he was telling the truth.
I turn last to consider briefly what would be the position if, contrary
to my view, it were permissible to look at the legislative history.
When the Industrial Relations Act 1971 was repealed by the Act of
1974. the provisions of the former Act relating to unfair dismissal were
largely re-enacted in Schedule 1. Mr. Elias accepted that an employee could
be dismissed by an omission, e.g. the failure to renew a fixed term contract
of employment: see paragraph 5(2)(b) of Schedule 1. This accords with the
extended definition in section 30(1) of the Act.
For some reason the Act of 1974 did not re-enact section 5(2) of the
Act of 1971, whereby it was made an unfair industrial practice to prevent or
deter a worker from exercising his rights under section 5(1), or to dismiss
penalise or otherwise discriminate against him for exercising such rights.
These rights included the right to be a member of the trade union of his
choice. It was not until the Act of 1975 that Parliament re-enacted the
substance of section 5. But the approach was very different. The concept of
unfair industrial practice was abandoned. Instead section 53 substituted the
right of an employee not to have action short of dismissal taken against him
for the purpose of preventing or deterring him from exercising the rights
formerly contained in section 5(1) of the Act of 1971. Section 126(3) of the
Act provided:
“… expressions used in the provisions of this Act relating to unfair
dismissal and in provisions of the 1974 Act relating to unfair dismissal
have the same meaning in this Act as in that Act.”
So an employee could be dismissed by omission under the Act of 1975,
just as he could under the Act of 1974. It is true that the extended definition
contained in section 30(1) was not expressly applied to cases of action short
of dismissal. But there may have been several reasons for this. It may have
been thought that since an employee can be dismissed by an omission, that is
to say, by failing to renew his employment, action short of dismissal in
section 53 must necessarily also include an omission to act. It may simply
have been an oversight. But, whatever the reason, I do not find it surprising
that the draftsman of the Consolidating Act passed in 1978 felt justified in
applying the extended definition to both cases alike; in doing so he may well
– 24 –
have thought (whether rightly or not) that he was not substantially changing
the law.
The case is thus very different from Beswick v. Beswick [1968] A.C.
58 where, as Lord Reid pointed out at p. 77, the application of the definition
in section 205 of the Law of Property Act 1925 would have taken section
56(1) “far beyond the pre-existing law”. Lord Guest at p. 85 described the
change as fundamental. “I cannot believe” he said “that Parliament intended
to make so fundamental a change in a Consolidating Act . . . “. If the Act
of 1978 made a change in the law at all, which may be doubted, it certainly
did not make a change which could be regarded as fundamental. So even if
one has regard to the legislative history in this case, it throws but little light
on the meaning of section 23(1)(a).
The final argument turned on section 5(4) of the Act of 1971, which
contained a specific provision that the granting of a benefit to one or more
workers, and the withholding of the same benefit from others, should be
regarded as discrimination for the purposes of section 5(2). It was said that,
since the draftsman must have had the language of section 5(4) before him
when he drafted section 53, and since he did not adopt substantially the same
language, he must have intended to give section 53 a narrower meaning. But
this overlooks the fact that the whole approach in section 53 is different. The
draftsman may well have thought that, with the abandonment of the concept
of unfair industrial practice, and the substitution of action short of dismissal,
specific reference to discrimination was no longer required.
For the reasons I have mentioned, I would reach the same conclusion
even if it were permissible to look at the legislative history. But I prefer to
put my decision on this part of the case on the basis that the words of the
Consolidating Act are clear and unambiguous and must be given effect
according to their meaning. It follows that in both appeals the employers took
action against the applicants as individuals. But in both cases the applicants
fail because the action was not for the purpose of preventing or deterring them
from remaining members of the union.
– 25 –
Source: https://www.bailii.org/
