National Coal Board v Ridgway
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE NICHOLLS,LORD JUSTICE BINGHAM |
| Judgment Date | 16 December 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1216-5 |
| Docket Number | 86/1136 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 1986 |
[1986] EWCA Civ J1216-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr. Justice Popplewell)
Royal Courts of Justice
Lord Justice May
Lord Justice Nicholls
and
Lord Justice Bingham
86/1136
MR. JOHN HENDY and MR. TIM KERR (instructed by Messrs Seifert Sedley Williams) appeared on behalf of the Appellants/ Applicants.
MR. C. FALCONER and MR. NICHOLAS UNDERHILL (instructed by Mr. C. T. Peach, Solicitor, British Coal) appeared on behalf of the Respondents/Respondents.
This is an appeal with leave against a judgment of the Employment Appeal Tribunal of 31st July 1986. That Appeal Tribunal had before it an appeal from a decision of an Industrial Tribunal sitting in Leicester between 19th and 28th May 1986. Over that period the Industrial Tribunal heard complaints from the two present appellants before us that their rights under section 23 (1) (a) of the Employment Protection (Consolidation) Act 1978 had been infringed. The Industrial Tribunal decided that the complaints succeeded and they adjourned the question of compensation. The Employment Appeal Tribunal allowed the Board's appeal against the finding of the Industrial Tribunal and dismissed the present appellants' complaints. The appellants now appeal to this court against the decision of the Employment Appeal Tribunal, asking that the decision of the Industrial Tribunal should be reinstated.
The case arises out of the miners' dispute and the facts giving rise to the issues are for present purposes well summarised by the Employment Appeal Tribunal. Until the strike the National Union of Mineworkers (NUM) was the only union representing miners in the industry. After the end of the strike the United Democratic Miners (UDM) was formed from the breakaway Nottingham and South Derbyshire areas of the NUM. In the Autumn of 1985 the Board negotiated increased rates of pay with the UDM. After a dispute had arisen between the Board and the NUM about certain changes which the former desired to the rules of the mineworkers' pension fund, but to which the NUM refused to agree, the Board decided that it would pay the increased rates of pay to both UDM and NUM members at pits where the UDM could establish that their members were in the majority. This the Industrial Tribunal described as even-handed and, given the circumstances, a sensible policy.
In mid-January 1986 the election for the President of the Leicestershire area of the NUM was due to take place. It was regarded as an area which might break away from the NUM, as had the Nottingham and South Derbyshire area miners at an earlier stage. However at an election on 17th January the UDM candidate did not win. All those taking part in the ballot at that time were members of the NUM. Nevertheless at a particular pit, known as Ellistown Colliery it was thought that more than half the members had in fact supported the UDM candidate, though this later turned out to be inaccurate. Against this background there was a meeting on 26th January between senior executive members of the UDM and some members of the Board. At it the UDM members made it clear that they were concerned about their position and particularly about their membership drive. They threatened the board with legal action. They were disenchanted with the even-handed approach which I have described. They contended that UDM members should be paid UDM rates wherever they worked. After lunch, during which the Board representatives went away to consider the position, the Chairman of the Board gave a handwritten note to the UDM representatives. This was to the effect that the Board's previous policy was to be changed in relation to Ellistown Colliery and that their UDM members would be paid the increased wages on proof of membership, but NUM members at the same pit would not be paid the increase.
This changed policy was in fact put into practice at Ellistown. Two of the NUM members working there were the present two appellants. Subject to what I say hereafter, they were paid at the reduced rate. As a result they claimed that their rights under section 23 of the Employment Protection (Consolidation) Act 1978 had been infringed. I need only quote section 23 (1) as amended in 1980 and 1982:
"23.- (1) Subject to the following provisions of this section, every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of—
(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or
(b) preventing him or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or
(c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions."
The amended complaints of the appellants read:
The actions of the National Coal Board in paying wage increases to members of the Union of Democratic Mineworkers and refusing to make the same pay award to members of the National Union of Mineworkers is action short of dismissal and intended to deter my membership of the NUM and persuade me to become a member of the UDM or penalise me from becoming or remaining a member of the NUM."
Before the Industrial Tribunal the respondent Board took as a preliminary point the issue whether in law the facts alleged in the appellants' complaints were capable of constituting a breach of section 23 of the Employment Protection (Consolidation) Act 1978. On this preliminary point, the Industrial Tribunal held that the omission to pay NUM members the increase which the UDM members were paid was "action (short of dismissal)" within the meaning of that phrase in section 23 (1), having regard to the definition of "action" in section 153 (1) of the Act which provided that that word included omission.
The Industrial Tribunal then held that the omission to pay a wage increase to the NUM members was capable in law of amounting to action taken against the particular employee "as an individual". The applicants' own wages were affected by the decision to pay the UDM members higher wages, even though doing the same work. Thus the action taken, although against a group, was also in the view of the Industrial Tribunal directed against the individual applicants as individuals.
Another argument directed to the Industrial Tribunal was that section 23 (1) (a) cannot apply when the employer's purpose is to penalise the employee from belonging to one independent trade union as opposed to another. It was contended that the section could not be relied on where the real dispute was an inter-union one, between two independent trade unions. The Industrial Tribunal said that they could not see any restriction imposed by the wording of the relevant section prohibiting its use in inter-union disputes and accordingly rejected this particular argument.
The Industrial Tribunal then recorded that the NUM was clearly an independent trade union and they turned to consider the facts and merits of the case. By virtue of section 25 (1) (a) the onus is placed upon the employer on the hearing of a complaint of the nature with which this case is concerned to show the purpose for which the action or omission complained of was taken. The Industrial Tribunal held that in these two cases the Board had not satisfied it as to the purpose for which the differential wage rates were imposed. The inference which they drew from all the facts was that the purpose of the ommission to pay NUM members at the same rate as UDM members was to penalise the applicants for being members of the NUM. In the result the Industrial Tribunal concluded that the appellants' complaints against the Board succeeded.
On the Board's appeal to the Employment Appeal Tribunal, the latter held that there were no grounds for disturbing the Industrial Tribunal's finding of fact that the purpose of the differential payment of wages was to penalise the appellants because of their membership of the NUM by putting them at a disadvantage compared with the UDM at Ellistown. The Employment Appeal Tribunal also agreed with the Industrial Tribunal that the omission to pay the same increase in wages to the appellants that was paid to the UDM members was "an action (short of dismissal"). However the Employment Appeal Tribunal differed from the Industrial Tribunal on the question whether as a matter of law section 23 (1) (a) was applicable to inter-union disputes; they held that it was not and that in consequence the appellants had no claim against the respondent Board in law. Finally, the Employment Appeal Tribunal also differed from the Industrial Tribunal on the question whether the action taken by the employers was taken against the appellants "as individuals"; they held as a matter of law that it was not and for that reason also the appellants' claims failed.
As I have said, the appellants now appeal to us seeking to have the decision of the Industrial Tribunal reinstated. By a respondent's notice by way of cross-appeal the Coal Board gave notice that upon the hearing of the appellants' appeal they would seek orders, first, that the Employment Appeal Tribunal's decision to uphold the Industrial Tribunal's finding of fact to which I have referred should be reversed and that consequently that finding of fact by the Industrial Tribunal should be held to be perverse; and, secondly, that the decision of the...
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