Cartlidge v Chief Adjudication Officer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,MR. JUSTICE ANTHONY LINCOLN,LORD JUSTICE OLIVER |
| Judgment Date | 28 November 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1128-6 |
| Docket Number | 85/0778 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 1985 |
[1985] EWCA Civ J1128-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(Civil Division)
Royal Courts of Justice.
Lord Justice Oliver
Lord Justice Ralph Gibson
and
Mr. Justice Anthony Lincoln
85/0778
No. SSC 6/85
MR. R. DRABBLE (instructed by Messrs. Seifert Sedley Williams London EC1) appeared on behalf of the Appellant (Plaintiff).
MR. J. LAW (instructed by the Solicitor to the Department of Health and Social Services) appeared on behalf of the Respondent (Defendant).
This is an appeal under s.14 of the Social Security Act 1980 from a decision of the Tribunal of Commissioners, dated 7th June, 1985, whereby they decided that Mr. Cartlidge, the appellant, was disqualified for receiving unemployment benefit for an inclusive period from 23rd March, 1984 to 20th November, 1984 on the ground that he was a person "who has lost his employment as an employed earner by reason of a stoppage of work which was due to a trade dispute at his place of employment." An appeal under s.14 is on a question of law only, and leave, which is required by the section, was given by the Commissioners on 10th July, 1985.
The appeal raises questions of construction of the provisions of s.19 of the Social Security Act, 1975 ("The Act"). That section provides as follows: "19.(1) A person who has lost employment as an employed earner by reason of a stoppage of work which was due to a trade dispute at his place of employment shall be disqualified for receiving unemployed benefit so long as the stoppage continues, except in a case where, during the stoppage he has become bona fide employed elsewhere in the occupation which he usually follows or has become regularly engaged in some other occupation; but this subsection does not apply in the case of a person who proves (a) that he is not participating in…or directly interested in the trade dispute which caused the stoppage of work…"
It is first necessary to describe the way in which this claim arose. Mr. Cartlidge had worked for some 44 years in the coal industry. He was a member of the National Union of Mineworkers ("NUM") and had for many years worked for the National Coal Board ("NCB") as a driver at Florence Colliery in Longton. In mid-1983 he applied to the Board to be considered for "voluntary redundancy": presumably he would, if accepted, receive the appropriate payment and would cease to be employed by the Board.
On 10th March 1984 he was given 12 weeks' notice of the termination of his employment on the ground of redundancy. Mr. Cartlidge said that his redundancy was due to a manpower saving scheme at Florence Colliery. He duly gave up his employment on 2nd June, 1984. He was unable to find other work. He claimed unemployment benefit on about 5th June, 1984. He, of course, satisfied the contribution conditions specified for unemployment benefit. He was capable of work. Subject only to the question of disqualification by reference to loss of employment by reason of a stoppage of work which was due to a trade dispute, Mr. Cartlidge was entitled to unemployment benefit under the terms of the Act "in respect of any day of unemployment which forms part of a period of interruption of employment": s.l4(l) (a) of the Act. The limit of the duration of unemployment benefit is 312 days in respect of any period of interruption of employent; and after that period a person's right to benefits ceases unless he requalifies for benefit by being in employment for 13 weeks: s.18 of the Act.
The stoppage of work which was found by the Tribunal of Commissioners to have caused Mr. Cartlidge to be disqualified for receiving unemployment benefit arose out of and was part of the national miners' strike. In_mid-1983 when Mr. Cartlidge applied for voluntary redundancy there was, so far as the facts in this case reveal, no dispute. According to the facts found by the Tribunal the origins of the eventual dispute included the offer in September, 1983 by the NCB to its employees of a 5.2 per cent pay increase. The account of the facts found by the Tribunal continues as follows from paragraph 9 of the decision: "This offer was rejected by the NUM on behalf of its members and at the same time they reaffirmed their opposition to pit closures. At the commencement of November, 1983 the NCB employees began a national overtime ban in support of their claims. The resolution passed at the Special Delegate Conference on 23rd October, 1983 makes it clear that there was one dispute and that the overtime ban was 'the first step in the campaign' against what was called 'a programme of attack' by the NCB relating both to pit closures and wages. On 6th March, 1984 the NCB announced the closure of Cortonwood and Bullcliffe Collieries in Yorkshire and proposals to close a further 20 collieries. On 8th March, 1984 the National Executive Committee of the NUM approved strike action by its members in support of their claims by way of escalation of the earlier dispute relating both to pit closures and wages. The employees at Florence Colliery withdrew their labour from 23rd March, 1984. Accordingly there was a stoppage of work at Florence Colliery from that date and the claimant lost employment as an employed earner by reason of that stoppage of work, which stoppage of work was we find due to a trade dispute both as to wages and pit closures at his place of employment namely Florence Colliery".
Mr. Cartlidge could escape the disqualification for receiving unemployment pay, which otherwise those findings of fact would impose upon him, according to the provisions of the Act as construed by the Tribunal, if he could prove that he came within the concluding clause of s.l9(l) which is known as the proviso: "but this sub-section does not apply in the case of a person who proves (a) that he is not participating in or directly interested in the trade dispute which caused the stoppage". He was able to show that he did not participate in the trade dispute. Florence Colliery was in the Midland area where a ballot held on 16th March, 1984 rejected strike action over pit closures by a vote of 72.93% to 27.07%. Mr. Cartlidge personally was against strike action. When he was able to get to work, he worked. The Tribunal found as follows: "He has shown to our satisfaction that he used his best endeavours to get into work and that on the occasions when he did not do so he was prevented by picketing of a violent nature…The claimant did not acquiesce in the strike by merely deciding not to cross picket lines (which acquiescence would amount in our judgment to participation in the trade dispute). Violent picketing prevented him from getting into work…if, contrary to our finding, the claimant did participate in the trade dispute then we find alternatively that his participation ceased when he became redundant on 2nd June, 1984…"
Mr. Cartlidge was prevented from working by the pickets from 23rd March to 13th April, 1984—a period of three weeks. Thereafter apart from eight particular days on 19th, 20th or 30th April, 1984, 2nd and 4th May and from 8th to 11th May, 1984, Mr. Cartlidge was at his work until his employment with the Board ended by reason of redundancy on 2nd June, 1984. He was thus working in his employment with the Board without interruption for three weeks before he left. Many other men were also working at Florence Colliery. There had been a gradual increase of numbers of men working from 4th April, 1984 when there were 140 in attendance to 21st November, 1984 when the number working first reached more than 1,000. By that date the Tribunal held—as a matter of fact and degree—that the stoppage at Florence Colliery had come to an end: some 77% of the men on the books were then at work and the evidence showed that normal attendance was slightly below 85%.
Mr. Cartlidge, however, was not able to satisfy the Tribunal that he was not "directly interested in the trade dispute which caused the stoppage of work". The finding of the Tribunal of the facts was, as already stated, that the stoppage of work at the Colliery was due to a trade dispute both as to wages and pit closures. If that finding of fact is unassailable then the conclusion of the Tribunal that Mr. Cartlidge had failed to prove that he was not "directly interested in the trade dispute" cannot be questioned. Mr. Cartlidge was obviously interested in the level of wages payable while his employment continued, and he had a direct interest in the dispute in that the wages he would receive up to the date of his being made redundant would be increased if a settlement was made although he would not receive that increase until after his employment had ended. It is the normal practice of the NCB to apply any award retrospectively to persons who have left the service of the Board under the pension schemes, or redundancy, and in favour of the representatives of deceased workers: see para. 12 of the decision.
The circumstances in which a person is, upon the proper construction of s.l9(l) of the Act, "directly interested in the trade dispute" include circumstances where the terms of the settlement of the dispute will be applied to him by the employers "automatically as a result of one or another of three things: first, a collective agreement which is legally binding; or secondly a collective agreement which is not legally binding; or thirdly, established industrial custom and practice at the place of work concerned": see per Lord Brandon of Oakbrook: Presho v. DHSS (1984) A.C. 310 at p.318E.
The result of the decision of the Tribunal in the case of Mr. Cartlidge is therefore as follows. Mr. Cartlidge applied to the Board...
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