McCormick v Horsepower Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE TEMPLEMAN,LORD JUSTICE O'CONNOR |
| Judgment Date | 13 April 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0413-3 |
| Docket Number | 81/0191 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 April 1981 |
[1981] EWCA Civ J0413-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from the Employment Appeal Tribunal, Mr. Justice Talbot presiding)
Royal Courts of Justice
Lord Justice Lawton,
Lord Justice Templeman
and
Lord Justice O'Connor
81/0191
EAT/256/79
MR. DAVID TURNER-SAMUELS, QC, and MR. STEPHEN SEDLEY (instructed by Messrs. Seifert Sedley & Co., Agents for Messrs. Casson & Co., Salford) appeared on behalf of the Appellant (Applicant).
MR. ALAN PARDOE (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the Respondent (Respondent).
I will ask Lord Justice Templeman to deliver the first judgment.
This appeal raises two problems in connection with section 62 of the Employment Protection (Consolidation) Act 1978, which debars an industrial tribunal from determining whether a dismissed striker has been unfairly dismissed if all the strikers have been dismissed. The first problem is whether the jurisdiction of the tribunal is ousted if a striker resumes his employment in the course of the strike but is dismissed before an application is made by another dismissed striker to the tribunal. The second problem is whether in the events which happened in the present case an employee who was not one of the original strikers took part in the strike when he refused to cross the strikers' picket lines.
Section 62 provides that where an employee who claims that he has been unfairly dismissed by his employers was at the time of his dismissal taking part in a strike, an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown that one or more of the employees of the same employer who took part in the strike have not been dismissed.
In the present case the employers, the respondents Horsepower Limited, employed boilermakers and engineers represented by different unions. On the 2nd October 1978 the boilermakers, who included the appellant, went on strike. The engineers took no industrial action. One of the engineers, a Mr. Brazier, was on holiday when the boilermakers began their strike. When Mr. Brazier returned from holiday on the 9th October 1978 he declined to cross the boilermakers' picket lines and was absent from work until the 13th November 1978, when he crossed the picket lines and resumed his work for the employers. Between the 21st November 1978 and the 5th December 1978 the employers dismissed all the striking boilermakers, including the appellant Mr. McCormick. On the 27th November 1978 the employers dismissed Mr. Brazier because he was redundant. The appellant applied to the industrial tribunal on the 7th December 1978 claiming that he had been unfairly dismissed. The employers replied that the tribunal could not determine whether the appellant had been unfairly dismissed because section 62 applied.
The appellant's application came before the industrial tribunal on the 20th February 1979. The employers argued that Mr. Brazier had not taken part in the boilermakers' strike and, even if he had, he had been dismissed and all the strikers had been dismissed, so that the appellant's claim was barred by section 62. The appellant contended that Mr. Brazier had taken part in the boilermakers' strike, that he had not been dismissed while he was on strike and that all the other strikers, including the appellant, who had been dismissed while they were on strike, were not barred by section 62 and were entitled to require the industrial tribunal to determine whether in all the circumstances they had been unfairly dismissed within the meaning of the Act.
The industrial tribunal, by a majority, decided that Mr. Brazier had not taken part in the boilermakers' strike and that section 62 therefore barred the appellant's claim.
The Employment Appeals Tribunal (Talbot J., Mr. Goff and Mr. Rogers) decided that Mr. Brazier had been on strike but, since Mr. Brazier and all the other strikers had been dismissed by the time the appellant's application came before the tribunal, section 62 barred the tribunal from determining whether the appellant had been unfairly dismissed.
The appellant appeals to this court repeating that Mr. Brazier had taken part in the strike and had not been dismissed while he was on strike and arguing that section 62 does not debar the industrial tribunal unless each and every striker is dismissed at a time when he is on strike.
The employers contend that Mr. Brazier did not take part in the strike and alternatively that the appellant's claim was barred because all the strikers and Mr. Brazier had been dismissed before the contrary could be shown to the tribunal.
Section 62 provides ( inter alia) that "in relation to an employee"—in this case the appellant—"who claims that he has been unfairly dismissed by his employer where at the time of dismissal…the employee was taking part in a strike…an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown…that one or more relevant employees of the same employer have not been dismissed". The expression "relevant employees" means "in relation to a strike…employees who took part in it".
The appellant was at the time of his dismissal taking part in a strike. If Mr. Brazier was one of the "relevant employees" nevertheless it was shown to the tribunal that all the relevant employees had been dismissed.
On behalf of the appellant, Mr. Turner-Samuels argued that since section 62 deals with a claim for unfair dismissal by a striker who was on strike "at the time of his dismissal" it must be implied as a matter of construction that a claim by such a striker for unfair dismissal should be determined by the tribunal unless "it is shown" to the tribunal that "one or more relevant employees of the same employer have not been dismissed" while they were on strike at the times of their respective dismissals. Mr. Brazier had been dismissed, but not whilst he was on strike.
In my judgment, this construction is inadmissible because it limits the apparent ambit and alters the ordinary meaning of the words used in section 62 by the addition of a non-existent requirement that all the relevant employees shall have been dismissed while they were on strike.
Mr. Turner-Samuels pointed out that the object of section 62, in the words of Viscount Dilhorne in Stock v. Frank Jones (Tipton) Ltd. 1978 ICR 347, "was to prevent victimisation by an employer of persons who took part in a strike or other industrial action....
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