Associated Newspapers Ltd v Wilson ; Associated British Ports v Palmer and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Browne-Wilkinson,Lord Lloyd of Berwick,Lord Slynn of Hadley,Lord Bridge of Harwich,Lord Keith of Kinkel |
| Judgment Date | 16 March 1995 |
| Docket Number | Parliamentary Archives, HL/PO/JU/18/255 |
| Date | 1993 |
| Year | 1993 |
| Court | House of Lords |
[1995] UKHL J0316-1
House of Lords
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Lloyd of Berwick
Parliamentary Archives, HL/PO/JU/18/255
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.
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 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:
(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 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 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)...
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