Express & Star Ltd v Bunday

JurisdictionEngland & Wales
Judgment Date24 July 1987
Judgment citation (vLex)[1987] EWCA Civ J0724-9
Docket Number87/0791
CourtCourt of Appeal (Civil Division)
Date24 July 1987

[1987] EWCA Civ J0724-9




(Mr. Justice Popplewell)

Royal Courts of Justice


Lord Justice May

Lord Justice Croom-Johnson


Lord Justice Glidewell


Express & Star Limited
Appellant (Respondent)
R. M. Bunday & Others
Respondents (Applicants)

MR. MICHAEL J. BELOFF, Q.C. and MR. J.E. MITTING, Q.C. instructed by Messrs Redferns; London Agents for Messrs Ryland Martineau & Co., Birmingham) appeared on behalf of the Appellant/Respondent.

MR. JAMES GOUDIE, Q.C. and MR. A.C.E. LYNCH (instructed by Messrs Kershaw Gassman & Matthews) appeared on behalf of the Respondents/Applicants.


This is an appeal from a decision of the Employment Appeal Tribunal of 27th October 1986. On that occasion the Tribunal had before it an appeal and cross-appeal from a decision of an Industrial Tribunal sitting at Birmingham, which was entered in the Register on 15th January 1986 after a hearing which took place between the 18th and 27th November 1985. The Industrial Tribunal in its turn had before it complaints by some 53 employees of the appellants before us (to whom I shall hereinafter refer as the "employers") under section 57 of the Employment Protection (Consolidation) Act 1978 that they had been unfairly dismissed. However the decision with which the Employment Appeal Tribunal and we have been concerned was on a preliminary question whether the Industrial Tribunal had jurisdiction to hear the complaints having regard to the provisions of section 62 of the Act.


It is convenient to set out the section, as amended, in full at this stage. It is in these terms:

"(1) The provisions of this section shall have in relation to an employee (the 'complainant') who claims that he has been unfairly dismissed by his employer where at the date of dismissal—

  • (a) the employer was conducting or instituting a lock-out, or

  • (b) the complainant was taking part in a strike or other industrial action.

(2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

  • (a) that one or more relevant employees of the same employer have not been dismissed, or

  • (b) that any such employee has, before the expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement.

(3) Where it is shown that the condition referred to in paragraph (b) of subsection (2) is fulfilled, the provisions of ss 57 to 60 shall have effect as if in those sections for any reference to the reason or principal reason for which the complainant was dismissed there were substituted a reference to the reason or principal reason for which he has not been offered re-engagement.

(4) In this section—

  • (a) 'date of dismissal' means—

  • (i) where the employee's contract of employment was terminated by notice, the date on which the employer's notice was given, and

  • (ii) in any other case, the effective date of termination:

  • (b) 'relevant employees' means—

  • (i) in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and

  • (ii) in relation to a strike or other industrial action, those employees at the establishment who were taking part in the action at the complainant's date of dismissal;

'establishment', in sub-paragraph (ii), meaning that establishment of the employer at or from which the complainant works; and

  • (c) any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case."


In so far as the dismissals involved in this case are concerned, 49 of the 53 complainants were dismissed by the employers on 16th April 1985; another two were dismissed a day later on 17th April; a further one on 20th April; and the last of the 53 on a date in June 1985. I should also refer at this stage to a Mr. Allesbrook, another employee, who was dismissed on 18th April 1985 but re-engaged on 19th April.


The Industrial Tribunal held that at the respective dates of dismissal of the complainant employees they were taking part in industrial action. The tribunal negatived the contention made on their behalf that at those dates their employers were conducting or instituting a lock-out. However the Industrial Tribunal held by a majority that Allesbrook was "a relevant employee" within section 62(4)(b)(ii) and thus that they had jurisdiction. Unfortunately, however, in considering whether Allesbrook had taken part in the industrial action which they held had occurred, the Industrial Tribunal looked at the date of his dismissal rather than at the dates of the dismissal of the complainants, which the relevant statutory provisions require.


The appeal of the employers to the Employment Appeal Tribunal was on this point. It seems to have been agreed on all sides that in this respect the Industrial. Tribunal had erred.


In their cross-appeal the employees contended that the Industrial Tribunal had been wrong in holding that they had been taking part in industrial action. It was submitted on their behalf that the correct view was that there had been a lock-out by the employers and that in negativing this contention the Industrial Tribunal had either misdirected themselves or alternatively had come to a decision which was perverse in the legal sense.


In brief the Employment Appeal Tribunal held that the Industrial Tribunal had misdirected themselves and that on the facts which they found they ought to have held that there had been a lock-out. If this is correct, then it is common ground that there were a number of other "relevant employees" within section 62(4)(b)(i) who satisfied section 62(2) and thus that the Industrial Tribunal did in any event have jurisdiction to hear the complaints of unfair dismissal.


The employers have now appealed to this court contending that the Employment Appeal Tribunal was wrong to disturb the Industrial Tribunal's finding that the employees had been taking part in industrial action. They seek to have that finding reinstated and some order made so that the Industrial Tribunal can now consider whether, on the correct dates, Allesbrook (who in such case is the only possible employee concerned) was a relevant employee within section 62(4)(b)(ii).


In their Reasons for their Decision the Industrial Tribunal set out detailed findings of the relevant primary facts. At this stage it is unnecessary for me to set these out in detail: it is sufficient if I merely indicate, as did the Employment Appeal Tribunal, the brief circumstances giving rise to this litigation. The employers are printers and publishers of provincial newspapers. At material times they wished to instal new technology and in particular what was described as "single keying". In short this meant that it would be possible for the representative of the newspaper who received an order for advertising to type the copy directly into the plate from which the newspaper was to be printed, instead of typing it onto an intermediate piece of paper from which another employee, a member of the National Graphical Association, could then set it up for printing. The Trade Union was opposed to the introduction of single keying. The employers had sought over an appreciable period of time to persuade the Union to accept it, but although negotiations took place these came to nothing. On 24th February 1985 the Union instructed their. members not to accept any ultimatum to agree to work which would mean accepting the introduction of the new technology and each was given a letter to put before the employers if and when they were requested to work the new system. The letter was set out in paragraph 3(e) (iii) of the Industrial Tribunal's Decision. The reaction of the employers as found by the Industrial Tribunal, was as follows:

"On Monday 25 February all access to the premises were closed with the exception of a management manned door, and employees on arrival for work were shepherded to a meeting. We accept that the closing of the doors was so that each individual member attending should be seen by management and it would also avoid industrial action taking place inside rather than outside. It is a natural fear of management. Once at the meeting explanations were given to the employees of what had taken place and they were asked certain questions.

'Are you prepared to work under your contract of employment without restriction and to handle work however processed when asked to do so?

If the answer still is "no" I have to inform you that you are liable to dismissal but in the circumstances you are for the moment immediately suspended without pay, and we will write to you today to give you your final position on your contract'.

There was, therefore, a request, a refusal, and a suspension without pay."


It is against this background that the issue between the parties has throughout been whether, on the detailed facts found by the Industrial Tribunal, there had been industrial action by the employees on the one hand or a lock-out by the employer on the other. This is crucial because "relevant employees" are defined differently in relation to these two respective states of affairs. The resolution of the issue then necessarily involves consideration of what amounts to, in particular, a "lock-out" within section 62 of the 1978 Act.


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