British Telecommunications Plc v Ticehurst and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE STOCKER,LORD JUSTICE NEILL,and |
| Judgment Date | 11 March 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0311-6 |
| Docket Number | 92/0244 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 1992 |
[1992] EWCA Civ J0311-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY
OF LONDON COUNTY COURT
HIS HONOUR JUDGE ODDIE
Royal Courts of Justice
Lord Justice Neill
Lord Justice Ralph Gibson
and
Lord Justice Stocker
92/0244
And
MR. J. BURKE Q.C. and MR. R. LEMON (instructed by Colin R. Green Esq.) appeared on behalf of the Appellants (Defendants).
MR. P. ELIAS Q.C. and MR. D. BEAN (instructed by Messrs Lawford and Co., Richmond, Surrey) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal by British Telecommunications plc ("BT"), the defendants in proceedings in the Mayor's and City of London County Court against judgments entered in favour of two plaintiffs, Mrs. Alison Ticehurst and Mr. Michael Thompson, by the decisions of His Honour Judge Oddie of 21st December 1990. The judgments were for sums claimed as due for wages, £817.70 by Mrs. Ticehurst and £297.66 claimed by Mr. Thompson.
BT submits that the judge was wrong in failing to hold that BT were entitled to refuse to let these plaintiffs work, and therefore to refuse to pay them, over certain days in April 1990, because the plaintiffs did not prove that they were willing to perform in full their obligations under their contracts of employment.
The cases raise issues of importance not only to the immediate parties but also to other members of the plaintiffs' union. There are a considerable number of other possible claims against BT arising out of similar facts and we understand that it is intended to treat the decision in these cases as a test case. The precise terms upon which any such arrangement has been made are not relevant to this appeal.
It was agreed at the trial that "what applies to Mrs. Ticehurst also applies to Mr. Thompson". Mrs. Ticehurst was employed as a buildings manager and Mr. Thompson was employed as a computer support manager at BT's Stone Technical College in Staffordshire. Mr. Thompson, who had retired, did not give evidence. The agreement might suggest that the question whether either plaintiff evinced an intention not to perform in full her or his obligations under their contracts of employment did not depend upon the conduct of either plaintiff individually, and that the conduct relied upon was that of the group of employees of BT, all members of the Society of Telecom Executive ("STE"), a trade union, in the course of a trade dispute. As will appear, that was not the basis of the agreement. I shall, nevertheless, as did the judge, refer hereafter only to Mrs. Ticehurst. The relevant facts were as follows.
1. The case arose out of an industrial dispute between BT and the members of STE including those employed at Stone. About 30,000 out of the 40,000 executives employed by BT, in certain grades, were represented by STE. STE was seeking a larger increase in pay for its members than BT was willing to offer. From about June 1989 STE members were taking part in industrial action short of strike action pursuant to a ballot of which the result was reported to BT on 25th May 1989. Instructions were given by STE to commence industrial action from 22nd June. That action was "initially" to consist of (i) general withdrawal of goodwill from BT as employer and (ii) working strictly to conditioned hours and (iii) refusing to undertake new temporary advancement. In this judgment I shall make use of a shorter phrase to refer to the industrial action short of strike action, namely "withdrawal of goodwill".
2. The details of what withdrawal of goodwill would entail were set out in the document BL247/89 which members of STE were advised to obtain from their branch secretary. Examples of the manner in which members were instructed by STE included: (a) not to accept any new work practice or procedure not specifically authorised by STE; and (b) to operate within standing instructions and their own duty schedule but, where a situation appeared to require action not covered by standing instructions, to require clear written instructions from their line manager and (to be told) whether consultation had taken place with STE.
3. STE found it necessary to intensify the industrial action. The instruction of 21st October 1989 (page 74) informed members that the industrial action centred on a withdrawal of goodwill and that the slogan of members should be "Say no first, ask questions later".
4. On 16th November 1989 the report to members from STE (page 76) included the observation that "members are taking an increasingly rigid view of what withdrawal of goodwill means" and members were asked "to examine their work carefully to see in what areas members might still be extending goodwill". It was repeated that the guiding motto should be "Say no first, ask questions later". The suggestion was made that when confronted with anything which might come within the scope of the STE action each member, after considering (inter alia) whether it formed part of his or her job description, should consider how much choice he or she had in how to do it and which option would cause the most inconvenience: page 77.
5. A special conference of STE members was held in Stone on 6th December 1989. The total number of managers at Stone in the grades represented by STE was about 228 (see page 130). A report back from that conference was made to STE members. It included the advice or opinion, in answer to a question about strike action, that (page 79) provided the action of members was conducted within the legislative requirements, which STE always assured, members would not break their contracts. The reference to "legislative requirements" was to the requirement of the support of a ballot for industrial action: section 10, Trade Union Act 1984. The advice was wrongly reported. STE at all times informed their members that strike action was a breach of contract but was of the opinion that the action of withdrawal of goodwill was not a breach.
6. That report back also identified, in a document called Appendix A, 24 actions which the members of the Stone Branch of STE were instructed to implement as part of the "withdrawal of goodwill" from 8th December 1989. They included:
(a) Instructions (in effect) not to do various sorts of work if not part of the member's job description or not "already agreed with the STE";
(b) Instructions to make applications, e.g. for any job vacancy the member might like to do, or for any training course that the member might think he might need in future, or for a statement of his current pension entitlement, or of PRISM records, or for a written explanation of current bonus procedures;
(c) Instructions not to co-operate with the use of any consultants unless agreed by STE.
7. On 13th December 1989 STE informed its members (page 83) of the instructions of the STE council with reference to decisions for the intensification of the existing withdrawal of goodwill, for extension of the existing industrial action less than strike action, and for a strike ballot early in 1990. As to withdrawal of goodwill, the instructions were:
"This means taking away those things you might previously have done which are designed to overcome problems. As time has passed you will have been interpreting that more rigidly, and much of what follows gives specific areas of goodwill you should be withdrawing. A bloody-minded employer deserves a bloody-minded response".
The instructions continued:
"Many managers make use of the 'quiet period' between Christmas and New Year to catch up on backlogs of work. You should not. If you are obliged to be present at work during that period, concentrate on the items listed in 5 below.
You should from now on ensure that you:—
(a) Apply for all vacancies for which you might be qualified.
(b) Apply for your pension benefit statement.
(c) Request that Telecom Today and other company mailings to be sent to you at work rather than at home. Continue to request it until complied with.
(d) Apply for all relevant training courses, and insist on receiving a syllabus in advance of attending.…
(e) Seek information on the terms of local bonus schemes. Do not be satisfied with less than full details of qualifications for and levels of payment.
(f) Take adequate meal breaks away from your desk—or, if possible, off site.
(g) Take your responsibilities seriously, particularly such peripheral activities as chargeship of buildings. Ensure you have all safety and security instructions which might possibly have relevance to your duty, and that you read, fully understand and apply them.
(h) Observe strictly BT's 'clear desk' policy…and ensure that you leave adequate time at the end of the day to do so properly".
Under the heading "Total Quality Management", the instructions continued:
"While continuing to endorse its principles, do not co-operate with any project not specifically agreed with the STE,…"
Then, under "Changes of Practice or Procedure", the instructions were:
and"No new practices or procedures should be accepted unless specifically agreed by the STE".
"Do not work with or to any consultants or contractors unless their use has been specifically agreed with the STE".
Finally, the instructions noted:
"The Council recognise that many members have been disappointed by those few of their colleagues who have failed properly to support the action. Your Branch officers should be informed of such instances and will advise you on how you should deal with the consequences of their behaviour".
8. In February 1990 STE...
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