Haygarth v J. & F. Stone Lighting & Radio Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Pearson,Lord Upjohn,Lord Reid,Lord Morris of Borth-y-Gest |
| Judgment Date | 20 October 1966 |
| Judgment citation (vLex) | [1966] UKHL J1020-1 |
| Date | 20 October 1966 |
| Court | House of Lords |
[1966] UKHL J1020-1
Lord Reid
Lord Morris of Borth-y-Gest
Lord Pearce
Lord Upjohn
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause J. and F. Stone Lighting and Radio Limited against Haygarth (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel, as well on Monday the 4th, as on Tuesday the 5th, Wednesday the 6th and Monday the 11th, days of July last, upon the Petition and Appeal of J. and F. Stone Lighting and Radio Limited, whose registered office is at 6 Broad Street Place, London, E.C.2, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 4th of May 1965, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Frank Binns Haygarth, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 4th day of May 1965 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I would allow this appeal but, as I understand that the majority of your Lordships are of a different opinion, I shall give my reasons as briefly as possible. The case appears to me to depend on the proper interpretation of the phrase "employed in manual labour" in section 175 (1) of the Factories Act 1961. That subsection provides that "factory" means "any premises in which or within the close or curtilage or precincts of which persons are employed in manual labour in any process for or incidental to any of the following purposes namely…." A number of purposes are then set out including the making altering repairing cleaning and adapting for sale of any article and the work must be carried out by way of trade or for purposes of gain.
I do not doubt that manual labour is not limited to physical work of a strenuous character: a person who is engaged in repetitive work of a delicate character which merely requires manual dexterity may well be included. The real question is whether this phrase includes persons whose work is predominantly brain work—where "the real labour involved is labour of the brain and the intelligence" (per Warrington J. In re Lithographic Artists 108 L.T. 894). I cannot imagine a case in which this question could arise under the Factories Act if there were more than one or two persons working in the alleged factory. I agree with the Scottish decision in Griffith v Ferrier 1952 J.C. 56 that it is sufficient to make premises a factory if only one person is employed there in manual labour, and if a number of persons are employed in the premises in making repairing or adapting articles it is hardly possible that all of them should be predominantly engaged in brain work. In the present case only one man was engaged in any of the activities specified in section 175: the rest of the employees were serving in a shop. But if this appal is dismissed the result may well be that the whole premises, which include the shop and the small workroom in which this man was working, will be a factory, for it may be difficult to operate section 175 (6) so as to exclude the shop from the "factory".
It is argued for the Respondent that, whether or not a person's work is predominantly brain work, he is employed in manual labour if he has to do any substantial amount of work with his hands in carrying out any of the activities specified in section 175. I reject this argument both on a construction of the section and because it appears to me to be inconsistent with a long line of authority.
If this argument is right the words "in manual labour" appear to be superfluous. The natural inference from the inclusion of these words in the definition is that there can be premises where one of the specified activities, e.g. ornamenting articles, is being carried on without any of the persons doing it being employed in manual labour; and therefore without the premises becoming a factory. But I find it impossible to visualise any premises in which any of these specified activities could be carried on without some one employed in that activity having to do a considerable amount of work with his hands. It is argued that although there is a one-man factory where the main work is predominantly ordinary brain work there is for some reason an exception where his work is creative or artistic. But if this wide interpretation of manual labour is adopted why should the protection which the Act then affords to ordinary brainworkers be withdrawn from the brainworker, like the sculptor or other artist, who has to do a great deal of work with his hands but whose brain work is thought to reach a higher standard. I would think that the definition must either include or exclude all whose work is predominantly brain work but who have to give effect to their brain work by using their hands.
In my view none of the authorities cited supports the Respondent's argument and I do not think that it is supported by the judgments in the Divisional Court in this case. The leading authority is Bound v. Lawrence [1892] 1 Q.B. 226. There the wording of the statute was different but the question was dealt with on general lines. The case related to a grocer's assistant whose work consisted almost exclusively in taking orders and serving customers.
Lord Esher M.R. said:
"In doing this he has to use his hands, and the question is whether that makes him a manual labourer. There can be no manual labour without user of the hands; but it does not at all follow that every user of the hands is manual labour, so as to make the person who does it a manual labourer."
Fry L.J. said:
"It is to be observed that it is difficult to imagine any work done by man so purely intellectual as to require no kind of work with the hands; and the converse is equally true, that there can hardly be work with the hands that requires no intellectual effort. If, then, the words 'manual labour' are to have the full significance which could be put on them, they would be extended to every kind of employment. That cannot be the true meaning of the statute, but some more confined interpretation must be arrived at. I agree that this must be done by looking to the nature of the substantial employment, and not to matters that are incidental and accessory"
and then he said that—
"the knowledge and skill required in selling the goods to customers is more important than the manual work that he does, and the latter is an incident of his employment."
I am not aware that this reasoning has ever been doubted and it is quite inconsistent with the Respondent's main argument.
In a number of cases the person in question was doing two different kinds of work one of which was clearly manual labour and the other was assumed not to be. The test was which was predominant. But if the Respondent's argument is right I find it difficult to see how both kinds were not manual labour. The leading case is Jaques v. Owners of Steam Tug Alexandra [1921] 2 A.C. 339. Jaques was the master of a small tug which had a crew of four. In addition to his duties as Master he had to do some deck hand's work which was admittedly manual labour. No one appears to have suggested that his duties as Master involved manual labour but I find it difficult to believe that they did not involve a substantial amount of work with his hands in so small a vessel with no one to help him but a deck hand, an engineer and a fireman. Lord Sumner said (at page 345):
"Service 'otherwise than by way of manual labour' on the other hand fits the case of a person whose service principally involves the exercise of mental qualities, sometimes with and sometimes without the accompaniment of manual labour"
Lord Parmoor said (at page 348):
"It was argued by counsel on behalf of the appellant that the claimant was entitled to compensation in all cases in which the employment included work, not negligible in quantity, by way of manual labour which was not accessory to but an integral part of the employment. If this construction is accurate the appellant would succeed in the appeal but I think it is not accurate and that to adopt it would be to include a number of employments which are in no sense employment by way of manual labour."
The argument which was so rejected seems to me to be indistinguishable from the Respondent's argument in this case.
In re Maschek [1938] 1 All E.R. 20 Branson J. approved of the terms of an official circular in which one way of distinguishing manual from non-manual labour was said to be whether the work consisted of the application of scientific knowledge as distinct from manual dexterity. I think that that distinction is right and is applicable to the present case.
But then it was suggested that "manual labour" in the Factories Act has a different meaning from that which it was held to have in...
To continue reading
Request your trial
- Colgate Palmolive (M) Sdn Bhd v Cheong Foo Weng
- Oliver Hennedige v PP
-
Hennedige Oliver v Public Prosecutor
...the dentures: at [30]. Gardner, Appeal of; Re Maschek; Re Tyrrell [1938] 1 All ER 20 (refd) J & F Stone Lighting & Radio Ltd v Haygarth [1968] AC 157 (folld) Criminal Procedure Code (Cap 113, 1970 Rev Ed) s 370 Factories Act 1973 (Act 6 of 1973) ss 6 (1), 9 (1) (consd); s 88 (2) Factories A......
- Enmore Estates Ltd v D R Singh