Associated Newspapers Ltd v Wilson ; Associated British Ports v Palmer and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE FARQUHARSON |
| Judgment Date | 30 April 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0430-5 |
| Docket Number | Nos. EATRF 92/0911/B and EATRF 92/1503/B |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 1993 |
[1993] EWCA Civ J0430-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL
Before: Lord Justice Dillon Lord Justice Butler-Sloss and Lord Justice Farquharson
Nos. EATRF 92/0911/B and EATRF 92/1503/B
MR. J. HENDY, Q.C. and MR. J. EADY (instructed by Messrs. Stephens Innocent) appeared on behalf of the 1st Appellant.
MR. N. UNDERHILL, Q.C. and MR. B. NAPIER (instructed by Messrs. Farrer & Co.) appeared on behalf of the 1st Respondent.
MR. P. CLARKE (instructed by Messrs. Pattinson & Brewer) appeared on behalf of the 2nd Appellant.
MR. P. ELIAS, Q.C. and MR. C. BEAR (instructed by Legal Services Department, Associated British Ports) appeared on behalf of the 2nd Respondent.
( )
We are very grateful to all four counsel who have addressed us for the clarity of their arguments, both on paper and orally, on these appeals.
Palmer -v- Associated British Ports :
The appellants in this case appeal from a majority decision of the Employment Appeal Tribunal, Mr. Justice Wood presiding, which, by an order of the 13th October 1992, allowed an appeal by the respondents, Associated British Ports ("the employers"), from a decision of an Industrial Tribunal. The matter concerns section 23 of the Employment Protection Consolidation Act, 1978, ("the Act").
Sub-section 1 provides:
"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".
We are only concerned with (a) and not with (b) or (c). The appellants were the applicants to the Industrial Tribunal in this case. They are employees of Associated British Ports in the port of Southampton who are, and were at all material times, members of the National Union of Railwaymen, now the NURMTW —which is beyond any question an independent trade union.
The appellants say that certain action taken by the employers against them falls within section 23(1)(a) and they
therefore presented a complaint to an Industrial Tribunal under section 24.
It is necessary to refer also to section 58 of the Act. Sub-section (1) provides:
"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 more 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".
In the case of National Coal Board -v- Ridgway [1987] ICR. 641, Lord Justice Nicholls commented that sections 23 and 58 were parallel provisions —section 58 dealing with dismissal, and section 23 dealing with action short of dismissal. I would observe in passing that National Coal Board -v- Ridgway is authority that the words in section 23(1) "as an individual" in the phrase "taken against him as an individual" were introduced to override parts of the reasoning in the House of Lords' decision in Post Office -v- Crouch [1974] 1 WLR. 89, to the effect that action taken against a union was taken against all its members.
At all material times so far as this appeal is concerned the NURMTW was a union "recognised" by the employers for collective bargaining purposes at the port of Southampton.
In June 1988 it was agreed between the employers and the NURMTW, on behalf of its members, that so far as Southampton was concerned bargaining over pay and conditions of service
would be on a local, rather than a national, basis. Nothing turns on that point.
The action by the employers within the meaning of section 23 of the Act, of which the appellants complain in the proceedings, is that in February 1991 the employers made an offer to manual grade staff at Southampton of personal contracts of employment in lieu of the former process of collective bargaining with the union. No one was compelled to accept the offer. Those who accepted the offer gave up the "right" to union representation which they had previously had under the agreement with the union, which formally constituted part of their contracts of employment. Those who did not accept the offer continued to be employed under their previous contracts with collective bargaining with the union as before but, and I stress the word, those who accepted the offer and entered into personal contracts were granted a significant pay rise which was not offered or paid to those who declined to enter into new personal contracts. Those who declined included the three appellants.
It is accepted in this Court, in view of National Coal Board -v- Ridgway that that action by the employers, because it discriminated between employees, is, for the purposes of section 23, to be regarded as action taken against those employees who did not get the pay rise individually. The broad question for the Industrial Tribunal was therefore whether the "purpose" of that action, the giving of the pay rise to those who accepted personal contracts but not to those who preferred to stay with collective bargaining through the union, was to penalise the latter for being members of the union or to deter them from continuing as members of the union.
But there is also a question to be considered of what is involved in the concept in section 23 and section 58 of being a member of an independent union. That comes about because it is clear that the bottom line of the current thinking of employers in this field, which came out particularly in the argument in the appeal in Wilson -v- Associated Newspapers, which was argued immediately before the argument on this appeal, is that "membership" means no more than a person has his name recorded in the union's Register of Members and holds a union membership card with the consequence that it is suggested —though I do not quote the words used by
Mr. Underhill —that it is a legitimate standpoint for an employer to say to an employee: "We have no objection to your being a member of a union, so long as you keep your membership card in your pocket unused and do not seek to make any use of your membership which could have any impact on us or our business". That particular question arose in the context of section 58 in the case of Discount Tobacco and Confectionary Ltd. -v- Armitage [1990] IRLR. 15, which was much discussed in the argument on the present appeal.
In that case Mrs. Armitage was a member of a union. She was dismissed by her employers after she had consulted a union official about the terms of her contract of employment and the union official had written a letter to her employers on her behalf about the terms of the contract. It was held by the Industrial Tribunal that she had been dismissed because of her membership of the union.
On appeal to the Employment Appeal Tribunal it was argued for the employers that there was a distinction to be drawn 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 the employment on the other. It was said that though there was evidence that the latter was the reason for her dismissal there was no evidence that the former was.
The Employment Appeal Tribunal rejected those arguments and Mr. Justice Knox said at paragraphs 13 and 14 of the decision:
"13. 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 essential services of a union on the other.
"14. Were it not so the scope of section 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 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".
I regard that decision as unquestionably correct and it has to be borne in mind in considering the reasons of the Industrial Tribunal in the present case. The decision means at the least that it is open to an Industrial Tribunal to hold that an employee has been dismissed or penalised for being a member of a union if he has been dismissed or penalised for invoking the assistance of the union in relation to his employment. To put it another way, in an appropriate case the Tribunal of fact has power to be robust in its findings.
Section 23 refers of course to the "purpose" of the employer in taking the...
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