Port of London Authority v Payne and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE STAUGHTON,LORD JUSTICE NOLAN |
| Judgment Date | 03 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1103-8 |
| Docket Number | EATRF 92/1042/B |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 1993 |
[1993] EWCA Civ J1103-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE INDUSTRIAL APPEAL TRIBUNAL
Before: Lord Justice Neill Lord Justice Staughton Lord Justice Nolan
EATRF 92/1042/B
EATRF 92/1077/B
MR. J. HENDY QC, MR. J. BOWERS and MR. D. BROWN (Instructed by Pattinson & Brewer, London WC1N 3HA) appeared on behalf of the Appellant
MR. A. PARDOE QC and MR. A. CLARKE (Instructed by Messrs Masons, London EC1) appeared on behalf of the Respondent
( )
Wednesday, 3 November 1993
1. Introduction
This appeal is concerned with events which took place in the Port of London following the abolition of the Dock Labour Scheme by the Dock Work Act 1989. In particular we are concerned with the port of Tilbury which is a thousand acre site on the north bank of the river Thames.
Before the introduction of the Dock Labour Scheme in 1947 most workers in the dock were employed on a casual basis. Men were chosen to work as and when work was available and they were only paid when working on a ship.
The Dock Labour Scheme was introduced in order to give some security to the largely casual labour force. A register of men was established and the Scheme prohibited the employment of men not on the register unless special permission was given. The registered men became entitled to receive certain minimum payments, whether actually working or not. The Scheme was administered by the National Dock Labour Board with local Dock Labour Boards in each port. The National Board was jointly controlled by the two sides of industry and financed by a levy made on employers as a percentage of their wages bill. In addition there was a national Joint Council and a local Joint Council in each port which had the task of settling any industrial issues which arose between the two sides.
As time went by, however, increases in mechanisation led to a reduction in the demand for men. At the same time the work at the port fell away. Some employers went out of business, and for a period after 1972 it was the practice that (in accordance with the Jones Aldington agreement) if an employer went out of business the local Dock Labour Board allocated the men to other employers on the river. But the requirement to employ these additional men, who might not be needed, led to further difficulties.
The Port of London Authority (the PLA) was incorporated in 1908 and is regulated by the Port of London Act 1968. The duties of the PLA include a duty to provide, maintain, operate and improve such port and harbour services and facilities in, or in the vicinity of the Thames, as it considers necessary and desirable. For some time before the abolition of the Dock Labour Scheme in 1989 the PLA had made itself responsible for employing dock workers who had become unattached because their previous employers had been forced out of business. It had been found that the allocation which had been provided for in the Jones Aldington agreement had placed an insupportable burden on other employers. In time, however, the PLA itself found that the cost of employing these extra dock workers on its own payroll as an "employer of last resort" was becoming too great a burden.
For some years before 1989 industrial relations at Tilbury were unsatisfactory. The PLA wanted change and the abolition of the Dock Labour Scheme and the introduction of local negotiations on pay and conditions. On the other hand the Transport and General Workers Union (the T & G), which was the trade union recognised by the PLA, wanted the Dock Labour Scheme to be preserved.
On 6 April 1989 the Secretary of State for Employment announced the introduction of a Bill for the abolition of the National Dock Labour Scheme. This move to abolish the Dock Labour Scheme led to industrial action. An account of part of this action is to be found in the report of the court proceedings which ensued: see ASSOCIATED BRITISH PORTS v. TRANSPORT and GENERAL WORKERS UNION [1989] ICR 557. For the purpose of the present appeal, however, it is unnecessary to investigate this aspect of the matter any further.
The abolition of the Dock Labour Scheme led to major changes in the port of Tilbury. In June 1989 the total work force at Tilbury was 1731 of whom 1122 were registered dock workers, all being members of the T & G. As a result of the changes introduced later in the summer of 1989, however, the number of men employed at Tilbury was much reduced. The total number of redundancies including voluntary and non-registered workers was 680. Among the registered dock workers who were made redundant were 17 shop stewards. These 17 registered shop stewards who were made redundant (together with two other men Mr. Desmond and Mr. Nicholson) were the applicants in the present proceedings.
A further change introduced following the abolition of the Dock Labour Scheme was that the PLA ceased to be an employer of dock labour. The men are now employed by wholly owned subsidiaries of the PLA. Furthermore, the terms and conditions of service of employees of the three subsidiary companies have greatly reduced the role for an independent trade union. No trade union is recognised by the PLA except to this limited extent, that a member of the workforce is entitled to be represented by a trade union in relation to discipline and grievance procedures.
Following the termination of their employment on the ground of redundancy, the 19 applicants instituted proceedings before an Industrial Tribunal seeking findings that they had been unfairly dismissed and orders that they be reinstated. The applications were heard together and occupied the Industrial Tribunal for 197 days. The hearings continued intermittently between 23 October 1989 and 21 February 1992. Shortly after the beginning of the hearing Mr. Mills, a member of the tribunal, died and the parties agreed to proceed thereafter before a tribunal of two. The Industrial Tribunal decided to split the hearing of the application into sections. As a result it gave four separate written decisions. It will be convenient to refer to these four decisions as follows:
(a) The decision dated 21 August 1991 as the Liability
decision.
(b) The decision dated 20 December 1991 as the Remedies Decision.
(c) The decision dated 21 February 1992 as the Practicability Decision.
(d) The decision dated 27 February 1992 as the Compensation Decision.
All four decisions formed the subject matter of an appeal to the Employment Appeal Tribunal. The appeal was heard on various dates in February, March and May 1992. Judgment was delivered on 9 July 1992.
By its Liability Decision the Industrial Tribunal decided unanimously that the PLA had unfairly dismissed all the individual applicants in that it had selected them for dismissal for redundancy for a reason falling within section 58(1)(b) of the Employment Protection (Consolidation) Act 1978 (the 1978 Act). The Industrial Tribunal set out the Full Reasons for its decision in a comprehensive document extending over 275 pages. I would like to pay tribute to the care and attention to detail with which this document was prepared.
The appeal on liability was dismissed by the Employment Appeal Tribunal. On this aspect of the case there is no further appeal to this court.
The second decision reached by the Industrial Tribunal was the Remedies Decision. By this decision the Industrial Tribunal decided unanimously that the PLA should be ordered to re-engage twelve of the nineteen applicants. The terms on which they were to be re-engaged were set out in respect of each applicant at Annexe 4 to the Decision.
By the Practicability Decision dated 21 February 1992 the Industrial Tribunal decided unanimously that the PLA had failed to show that it was not practicable for it to comply with the orders for re-engagement dated 20 December 1991. The Tribunal further decided that the applicants were entitled to a basic award, a compensatory award and a special award to be calculated in accordance with sections 73, 74, 75 and 75A(2) of the 1978 Act.
The Employment Appeal Tribunal heard the appeals by the PLA against the Remedies Decision and the Practicability Decision together. It was argued on behalf of the PLA before the Employment Appeal Tribunal that the Industrial Tribunal had erred in concluding that section 69 of the 1978 Act gave the Tribunal a general discretion whether or not to make an order for re-engagement. It was further argued that the Industrial Tribunal had erred in failing to determine the issue of practicability before deciding to make the re-engagement orders. In substance the Employment Appeal Tribunal accepted these arguments, and held that the Industrial Tribunal had erred in law in that it had failed to determine before making any orders for re-engagement under section 69, whether it was practicable for the PLA to comply with such orders. The Employment Appeal Tribunal accordingly set the Remedies Decision aside and ordered that the matter should be remitted for a rehearing.
Despite its conclusion on the Remedies Decision, however, the Employment Appeal Tribunal went on to consider the Practicability Decision in case they had been in error on the second appeal. The Employment Appeal Tribunal concluded that in reaching its Remedies Decision the Industrial Tribunal had substituted its own commercial judgment for that of the employer and had failed adequately to take into account the question of finance in its criticism of the PLA's failure to seek voluntary severance.
By the Compensation Decision dated 27 February 1992 the...
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