F W Farnsworth Ltd v McCoid
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE OTTON,LORD JUSTICE WARD |
| Judgment Date | 23 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0323-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 1999 |
| Docket Number | EATRF 98/98/0506/3 |
[1999] EWCA Civ J0323-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2A 2LL
The Master of the Rolls
(Lord Woolf)
Lord Justice Otton
Lord Justice Ward
EATRF 98/98/0506/3
MR J BOWERS QC and MR I GATT (Instructed by Dibb Lupton Alsop, Sheffield S1 1RZ) appeared on behalf of the Appellant
MR T LINDEN (Instructed by Pattinson & Brewer, London, WC1N 3HA) appeared on behalf of the Respondent
Tuesday 23 March 1999
This appeal turns on the meaning of three words, those words being "as an individual" in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The section, so far as relevant, reads as follows:
"(1) An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of
(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for so doing."
Subsection (5) of the section provides that:
"An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of this section."
If an employee brings a complaint to an Industrial Tribunal under subsection (5), the Industrial Tribunal, if he is successful can provide a remedy which, so far as this case is concerned, would be limited to a declaration and, possibly, compensation.
The matter came before the Industrial Tribunal and then before an Employment Appeal Tribunal on a preliminary point. In this case it would have been preferable if the matter had not been dealt with in that manner. This is because it would probably have avoided the need for the appeals if the issue had been dealt with on the facts found by the Industrial Tribunal.
The issue which divides the parties can be stated shortly. It was whether Mr McCoid, the appellant, was discriminated against because he was a union Shop Steward, or was he discriminated in his capacity, which a tribunal could describe on the facts was as an individual. I would interpret the three words in dispute as capable of applying to this case. That was the view of the chairman of the Industrial Tribunal. It was also the view of the Employment Appeal Tribunal, the chairman of which was His Honour Judge Butter QC, which gave a decision on 27 March 1998.
There is a difference of opinion between the employer and Mr McCoid as to the background facts which resulted in his being removed from his position as a Shop Steward. There is, however, no doubt that he has been "derecognised". The employers' case is that he was derecognised because the way he conducted himself meant that he was not suited to hold the office of Shop Steward. The version of events of Mr McCoid is that:
"….my employer has deliberately and systematically sought to deter me from effectively carrying out my duties as a Shop Steward through continual complaints against me and threats of de-recognition. This intimidation and harassment has been making my life intolerable and I am convinced that the company is deliberately trying to provoke me into either voluntarily resigning my position or into doing something for which they can take action against me."
While there is a dispute as to why Mr McCoid was derecognised, what is not in dispute is that his terms of employment were not affected by that action. The only effect of the action taken by the employer is to deprive Mr McCoid of having the status and being able to perform the activities of a Shop Steward on behalf of his fellow employees.
The employers read the opening words of subsection 1(1) so that their effect is that there has to be action short of dismissal taken against the employee as an individual by his employer, the words "as an individual" being interpreted as meaning "in his capacity as an employee". The employers say it is not sufficient if the action, short of dismissal, which was taken was in a capacity which only related to his position as here, a Shop Steward. That is an approach which I consider is inconsistent with the general intent of section 146(1)(b). The purpose of section 146(1)(b) is to allow an employee, who has as an individual, in the claim, been subject to victimisation, to put his allegation or complaint before an Industrial Tribunal. If Mr McCoid cannot do that, because he was only affected in his office as a Shop Steward, that would involve inserting into the legislation words which do not appear, namely, "as an individual in his capacity as an employee" or such similar words to, "as an individual employee". The addition would enable a distinction to be drawn between actions short of dismissal, in the capacity as an employee, and actions short of dismissal in the capacity of, for example, a Shop Steward.
The argument, which has been skilfully developed by Mr Bowers on behalf of the employers would have had no prospect of success in my judgment but for the decision of the Court of Appeal in the case of National Coal Board v Ridgeway [1987] ICR 641. That was a decision of this court by a majority, the majority consisting of Nicholls and Bingham LJJ with May LJ dissenting. The provision which the court was there considering is section 23(1)(a) of the Employment Protection (Consolidation) 1978. However, the successor of that provision is not materially different.
In that case, there had been a dispute between the National Coal Board and the National Union of Miners, which resulted in members of a rival trade union, the UDM, being paid an increase of wages which did not apply to the members of the NUM. The applicants complained to an Industrial Tribunal that the increased payments to the members of the UDM was action taken, short of dismissal, against them as individuals contrary to section 23(1)(a) of the Act.
It was that dispute which eventually came before the Court of Appeal. By a majority the Court of Appeal came to the conclusion that the section applied and the members of the NUM had been affected as individuals because they had received pay which was less than the pay received by the members of the rival union, albeit that this was a consequence of a dispute between the National Coal Board and the National Union of Mine Workers.
The facts here are obviously very different. That is an important matter to bear in mind when considering what was said by Nicholls and Bingham LJJ in that case. Under the heading "As an Individual" on page 657, Nicholls LJ recited the submission of the NCB that:
"When action is taken in a case where the true context is collective as opposed to individual, the action is not against the employee 'as an individual' even though he is affected. That is this case: the applicants were caught in the cross-fire of an engagement between the UDM and the NUM."
As to that submission Nicholls LJ says:
"I cannot accept this. It seems reasonably clear that the phrase 'as an individual' was included in section 53 of the Employment Protection Act 1975 (which was the forerunner of section 23 of the Act of 1978) to exclude from the ambit of the right conferred on employees by that section conduct of the kind found in Post Office v Crouch [1974] ICR 378. There the Post Office refused facilities for trade union activities on its premises to one particular union, and Mr Crouch, who was a local branch organiser of that particular union, made a complaint under section 5 of the Industrial Relations Act 1971. Under section 5(2) it was an unfair industrial practice for an employer to 'discriminate against a worker' by reason of his exercising any of his statutory rights. The section contained no words corresponding to the phrase 'as an individual.' Nevertheless it was argued that any discrimination there was against the union and not Mr Crouch personally. That argument was rejected. Lord Reid said, at p 401:
'It was argued that here any discrimination is against the TSA and not against Mr Crouch personally. But discrimination against a man's trade union generally affects him personally. The prejudice to the man himself may be so small as to be negligible. But where it is substantial and a necessary consequence of the discrimination against the trade union and this must have been known to the employer the employer has in fact so acted as to worsen the man's position in comparison with that of a man in another union against which there has been no discrimination. That appears to me to be well within the mischief against this provision is directed and to come within its terms.'"
Nicholls LJ continues at page 658:
"Against that background it seems to me that the expression 'as an individual' in what is now section 23 of the Act of 1978 was intended to preclude adverse action taken against a union being treated ipso facto, on the reasoning adopted in the Crouch case, as action taken against the employee. Adverse action taken against a union is not, by reason only of any consequential effect it may have on members or officers of the union, to be treated as action against individual employees. To be within the section the action has to affect the employee otherwise than merely qua member or officer of a union."
One can understand why Mr Bowers sees that paragraph as assisting his case. However, in my judgment that paragraph of Nicholls LJ's judgment has to be understood in the context of the facts which he was considering. In that case, as in the case of the earlier decision of Post Office v Crouch, the action which had been taken had...
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