Norris and Others v London Fire and Emergency Planning Authority
| Jurisdiction | UK Non-devolved |
| Date | 2013 |
| Court | Employment Appeal Tribunal |
Employment - Wages - Industrial action - Employees refusing to act up during official union action on shift patterns - Refusal continuing after action ended for reasons pre-dating union action - Belief not contractually required to act up - Employees not acting in concert - Employer making deduction from wages on ground employees taking part in “industrial action” - Whether justified - Whether possible for lone individual to take part in industrial action -
The three claimants were firefighters who were “starred” crew managers, recognised by the respondent authority as competent to act up to the role of watch manager if required to do so. When the authority proposed changes to the working shift patterns, the claimants’ union called for industrial action, which took various forms. The claimants refused to act up during the official action, and the respondent authority made a deduction of 20% from their wages, pursuant to section 14(5) of the Employment Rights Act 1996F1, on the basis that they were taking part in “a strike or other industrial action”. The claimants continued to refuse to act up after the official action had ended, each having his own reasons for not wishing to do so, which pre-dated the industrial action, and believing that they were not contractually obliged to do so. When the authority went on making deductions from their pay, they brought complaints under section 13 of the 1996 Act, claiming that the authority had no grounds for making any deduction from their wages, as they were no longer taking part in a strike or industrial action, and believing that they were not contractually obliged to do so. On a pre-hearing review, an employment judge found that, though there was no evidence that the claimants were acting in concert, their lone action in continuing to refuse to act up was a continuation of one of the disputed collective issues, namely shift patterns, and its purpose was to put pressure on the authority to improve their conditions of employment by allowing them to relinquish the starred status. She accordingly concluded that the claimants were taking part in industrial action at the relevant time and that section 14(5) barred the claims.
On appeal by the claimants—
Held, allowing the appeal, that an employee’s refusal to carry out a task which he believed he was under no obligation to perform did not in the absence of any other element constitute “industrial action” in the ordinary understanding of that term; that the employment judge erred in holding that the claimants’ continued refusal to act up was a continuation of the collective dispute about shift patterns, since the dispute about shift patterns and the dispute about relinquishing starred status were obviously distinct and different things; that the judge also erred in finding that by continuing to refuse to act up the claimants were seeking to coerce the respondent authority to improve their conditions of employment, as the claimants were simply refusing to do something that they did not believe they were obliged to do; that, further, in ordinary usage “industrial action” connoted action taken by more than one worker acting together, whereas, in the present case, the claimants were acting independently and there was no collective element; and that, accordingly, the claimants’ refusal to act up after the official action had ended did not constitute participation in “industrial action” for the purposes of section 14(5) of the Employment Rights Act 1996 (post, paras 19, 22, 23, 26, 31).
The following cases are referred to in the judgment:
Bowater Containers Ltd v Blake UKEAT/552/81 (unreported) 27 May 1982,
Coates v Modern Methods & Materials Ltd [
Knowles v Fire Brigades Union [
Lewis v E Mason & Sons [
Miles v Wakefield Metropolitan District Council [
Naylor v Orton & Smith Ltd [
Power Packing Casemakers Ltd v Faust [
Tramp Shipping Corpn v Greenwich Marine Inc [
No additional cases were cited in argument.
APPEAL from an employment judge sitting at London South
By a judgment on a pre-hearing review sent to the parties on 15 November 2011 the judge dismissed claims by a number of claimants against the London Fire and Emergency Planning Authority, for unlawful deduction of wages on the ground that she had no jurisdiction pursuant to section 14(5) of the Employment Rights Act 1996, as at the relevant time they were taking part in industrial action.
Three of the claimants, Mr Steven Norris, Mr Matthew Hearn and Mr Luke Rowson, appealed by a notice of appeal dated 19 December 2011 on the grounds that the judge’s findings were perverse and that the judge was wrong to hold that a person not acting in concert in asserting what he believed to be his contractual rights was taking industrial action.
The facts are stated in the judgment.
Oliver Segal QC (instructed by
John Cavanagh QC (instructed by
The court took tine for consideration.
8 March 2013. The following judgment was handed down.
UNDERHILL J
Introduction1 Between 29 September and 24 December 2010 a large number of firefighters employed by the London Fire and Emergency Planning Authority took official industrial action. The action fell short of a strike but consisted of various forms of what could broadly be described as working to rule. In response, the authority made deductions of 20% from the wages of the employees concerned. In the case of most of them the deductions ceased when the underlying dispute was settled and the official action came to an end; but it is the position of the authority that three employees, the appellants before me, continued to take (unofficial) industrial action after 24 December, and in their cases the deductions continued.
2 Some 368 firefighters, including the appellants, brought claims in the employment tribunal under Part II of the Employment Rights Act 1996 claiming that the deductions were unlawful. One of the bases on which the authority resisted the claims was that the tribunal had no jurisdiction to entertain them by reason of section 14(5) of the Act, which provides:
“Section 13”—being the principal operative section in Part II—“does not apply to a deduction from a worker’s wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker’s having taken part in that strike or other action.”
3 The issue whether the claims were excluded by section 14(5) was heard by Employment Judge Balogun, sitting at London South, on 6 and 7 October 2011. By a judgment, accompanied by clear and thorough reasons, which was sent to the parties on 15 November, she dismissed all the claims, including those of the appellants, for lack of jurisdiction.
4 The appellants appeal against the dismissal of their claims in respect of the period following the ending of the official industrial action. They have been represented by Mr Oliver Segal QC. The authority has been represented by Mr John Cavanagh QC. Both counsel also appeared in the employment tribunal. The case was very well argued on both sides.
The basic facts5 The appellants all held the grade of crew manager. Some crew managers are designated as “starred” (“CM*”), which means that they are recognised by the authority as competent to act up in the role of watch manager (being the next grade up) and may from time to time be required to do so on a particular shift or shifts (for which they receive additional pay). When they do so it may be at a station other than their home station. Each of the appellants was starred.
6 It has always been the position of the authority that once a crew manager becomes a CM* the additional responsibilities become part of his or her contract of employment. The appellants dispute that and say that they can relinquish starred status, on reasonable notice, if they choose. That dispute is unresolved, but it is not necessary that I should decide it in order to decide the issues in this appeal, and I was not invited to do so.
7 The subject matter of the dispute which led to the industrial action that started on 29 September 2010 was described by the judge as “proposed changes to shift times and other efficiencies proposed by the [authority]”: reasons, para 4. Mr Segal suggested that that was an over-simplification and drew my attention to the terms of a letter from the Fires Brigades Union to the authority dated 20 April 2010 which appears to define the issue as being not the proposed changes as such but the fact that the authority was intending to introduce them without consent by means of mass dismissals coupled with offers of re-engagement on the new terms. I do not think that for present purposes that is a material distinction. The letter does not suggest that the judge misdescribed the underlying issue, which is referred to in it as, rather generally, “the issue of working hours”; and indeed a circular issued by the union for the purpose of the ballot refers to “changes in working hours in respect of shift duty personnel”.
8 The industrial action called by the union took various forms but it included a ban on acting up. There was apparently some confusion about whether that ban was intended to apply to CM*s acting up as watch managers. I was told by Mr...
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