Presho v Department of Health and Social Security
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE KERR,LORD JUSTICE SLADE |
| Judgment Date | 28 April 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0428-5 |
| Docket Number | 83/0181 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 1983 |
[1983] EWCA Civ J0428-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A DECISION OF THE SOCIAL SECURITY COMMISSIONER
(MR. COMMISSIONER GOODMAN)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Kerr
and
Lord Justice Slade
83/0181
Commissioner's File CU166/1980
MR. JOHN HAND (instructed by Mr. Jack Thornley, Solicitor, Ashton under Lyne) appeared on behalf of the Appellant (Appellant)
MR. SIMON BROWN (instructed by the Solicitor, Department of Health and Social Security) appeared on behalf of the Respondents (Respondents)
I ask Lord Justice Kerr to give the first judgment on this appeal.
This is an appeal pursuant to s.14 of the Social Security Act 1980 by Mrs. Presho against a decision of a Social Security Commissioner (Mr. M.J. Goodman) given as long ago as 27th March 1981. S.14 confers a right of appeal to this court from the decisions of commissioners on questions of law with the leave of the commissioner or of this court if the commissioner refuses leave, and in the present case the necessary leave was granted by this court.
The commissioner's decision, affirming that of the Local Tribunal and of the Insurance Officer, was that Mrs. Presho was disqualified from receiving unemployment benefit for the period from 18th to 22nd November 1978 inclusive by reason of S.19(1) of the Social Security Act 1975, as amended by the Employment Protection Act 1975. In its present form the provision is in the following terms so far as material:
" Loss of employment due to stoppage of work
A person who has lost employment as an employed earner by reason of a stoppage of work which was due to a trade dispute at his place of employment shall be disqualified for receiving unemployed benefit so long as the stoppage continues…..; but this subsection does not apply in the case of a person who proves that he is not participating in or directly interested in the trade dispute which caused the stoppage of work".
I shall have to refer to the unamended text hereafter. For the moment it is sufficient to say that the words "or financing" had previously appeared between "participating in" and "directly interested in", and that there was a further proviso which does not appear to have any relevance for present purposes.
The issue as to Mrs. Presho's entitlement to unemployment benefit has been treated as a test case from the beginning, since it applies to all of 417 production workers—of whom she was one—at the factory of Brooke Bond Oxo Ltd. in Hartley Street, Great Harwood. It has also been so treated on this appeal, because it raises a point of considerable general importance on the interpretation and application of this section which has not previously been considered by this court, bearing in mind that before 1980 there were no appeals from the decisions of National Insurance Commissioners (as they were previously called).
The background to the dispute at the factory which caused the claimant to become unemployed, as mentioned hereafter, is that in 1978 a governmental Pay Restraint Scheme was still in force which provided for pay rises over different stages referred to as phases 1, 2 and 3. Against this background, and since an appeal to this court lies only on a question of law, it is convenient to take the facts from the decision of the commissioner which—as was accepted on both sides—was fully in accordance with the evidence. I therefore set out paragraphs 3, 4 and 5 of the commissioner's decision:
"3. The claimant was at the material time employed as an instructor/machine operator, that is a production worker, at the food factory in question. She was a member of the Union of Shop, Distributive and Allied Workers (USDAW). Also employed at the factory were 57 maintenance engineers who were members of the Amalgamated Union of Engineering Workers (AUEW). That Union put in a demand for the phase 1 and phase 2 increases (under the pay policy then in force) to be consolidated into their basic wages which demand would, if conceded, presumably represent a financial improvement for them, in that over-time rates calculated on basic rates would thereby be increased.
"4. The management of the factory did not feel able to concede this demand. A work to rule was imposed by the maintenance engineers. As a result of an alleged refusal by 2 engineers to do a particular job and their consequent suspension, work came to a standstill at the factory. On Monday 20 November 1978 all 417 production workers were laid off, as machines were not being repaired. The stoppage of work ended on Thursday 23 November 1978, when work resumed in the factory, the terms of settlement being that pay negotiations would be brought forward to an earlier date in 1979 than had been originally contemplated.
"5. The claimant's claim for unemployment benefit from Saturday 18 November 1978 to Wednesday 22 November 1978 was disallowed by the local insurance officer on the ground that the stoppage of work which had caused her to lose her employment was due to a trade dispute at her place of employment and that she was not able to prove that she was not directly interested in the trade dispute (see Social Security Act 1975, section 19(1)). That disqualification was upheld on appeal by the local tribunal which held a careful hearing with witnesses both from the union and the management sides present, the tribunal taking considerable pains to make detailed findings of fact and to give grounds for their decision".
The decision of the commissioner went on to make it clear that there was no question that Mrs. Presho had been "participating in" the trade dispute which caused the stoppage, but that the issue was solely whether or not she had shown that she was not "directly interested in" this trade dispute, and this again was common ground. It was also common ground that the evidence showed that the practice of management at the factory in question was to apply "across the board" any alterations in the pay structure which might be applied to any part of the total workforce, although there was no collective or other agreement to this effect. Separate collective agreements negotiated with USDAW and AUEW were in force, but on the evidence it was clear that, at any rate in relation to wages, any re-negotiation of one would be followed by a re-negotiation of the other. This appears to have happened in the present case in that both agreements were re-negotiated in 1979, as mentioned in paragraph 4 of the commissioner's decision and as explained further later on in this judgment.
It is then convenient to set out paragraph 8 and parts of paragraphs 9 and 10 of the decision, although the references to earlier reported decisions of commissioners will also have to be amplified later.
Paragraph 8 reads as follows:
"Although the claimant was a member of a union (USDAW) which did not at that time make a claim for a consolidation of the phase 1 and phase 2 increases, it is in my view incontrovertible on the evidence that the factual situation at the factory was such that, if the demand by AUEW were conceded it would automatically be applied to the USDAW workers as well. The evidence given at the local tribunal in my view undoubtedly leads to this conclusion and the fact that the consolidation of the phase 1 and phase 2 increases was not at that time conceded does not alter the position because 'interest' means an interest in the possible outcome of the dispute. Moreover the interest was 'direct' because to quote reported Commissioner's Decision, R(U) 13/71 (approved on this point in Commissioner's Decision R(U) 14/71, 'The outcome of the dispute (was) likely to affect the claimant, not at a number of removes but virtually automatically, without further intervening contingencies".
Then I read the last sentence of paragraph 9 of the decision:
"In the present case there was no claim to an alteration in the method of assessment of the amount of work done in order to calculate wages, as in R(U) 8/72, nor is there any evidence before me of a formal wages agreement between the claimant or the claimant's union and the employers that would need abrogation or renegotiation before any consolidation of the phase 1 and phase 2 increases could be virtually automatically applied to the claimant".
Then I read the last sentence of paragraph 10:
"I adopt in relation to the facts of the present appeal the wording of paragraph 17 of R(U) 8/80, 'the probabilities would be such…..as to amount to a certainty that any higher offer would be accepted….."in the real world if there was more money on the table it would be accepted"'".
All of the reported decisions of commissioners which are referred to in these passages—and it must always be remembered that for every reported decision in this field there are likely to be hundreds which are not reported—followed and applied, with some differences in wording, a statement in the decision R(U) 13/71 by a Scottish commissioner in 1971, Mr. H.A. Shewan, which has also been referred to with approval in the Court of Session as mentioned hereafter. It is therefore convenient to set this out. (The words which I have placed in square brackets were critcised in a later Commissioner's decision, but in my view they are in any event immaterial for present purposes).
"Without attempting to define precisely what is meant by 'direct interest', I think that a claimant should not be regarded as having a direct interest in another person's dispute…..unless [there...
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