Presho v Department of Health and Social Security
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Roskill,Lord Brandon of Oakbrook |
| Judgment Date | 15 December 1983 |
| Judgment citation (vLex) | [1983] UKHL J1215-1 |
| Date | 15 December 1983 |
| Court | House of Lords |
[1983] UKHL J1215-1
House of Lords
Lord Diplock
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Roskill
Lord Brandon of Oakbrook
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it and for the reasons stated in it I would allow this appeal.
My Lords,
I agree that this appeal should be allowed for the reasons given in the speech of my noble and learned friend, Lord Brandon of Oakbrook.
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Brandon of Oakbrook. For the reasons he gives I would allow the appeal and restore the decision of the commissioner.
My Lords,
The respondent, Mrs. Kathleen Presho ("the claimant"), was in November 1978 employed by Brooke Bond Oxo Limited at its food factory at Great Harwood, Lancashire. During or following a short period when she was laid off work in consequence of an industrial dispute in which she was not herself a participant, she applied to an insurance officer for unemployment benefit for the period 18th to 22nd November 1978. The insurance officer refused her claim on the ground that, in the circumstances of the case, she was disqualified by the relevant legislation from receiving such benefit. The claimant brought a first appeal to a local tribunal at Accrington, which by a decision made on 22nd August 1979 dismissed her appeal. The claimant brought a second appeal to the social security commissioner, Mr. Commissioner Goodman ("the commissioner"), who by a decision made on 27th March 1981 dismissed that appeal also. By notice of appeal dated 28th January 1982 the claimant brought a third appeal to the Court of Appeal. That court by an order dated 9th May 1983 unanimously allowed her appeal, set aside the commissioner's decision and directed that unemployment benefit should be paid to the claimant for the relevant period. The Court of Appeal further gave leave to the commissioner to present a petition of appeal to your Lordships' House.
The material facts are set out in paragraphs 3, 4 and 8 of the commissioner's decision, which read as follows:-
"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 subsequent suspension, work came to a standstill at the factory. On Monday 20th November 1978 all 417 production workers were laid off, as machines were not being repaired. The stoppage of work ended on Thursday 23rd 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.
8. 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 …"
Section 19(1) of the Social Security Act 1975 , before its amendment by section 111(1) of the Employment Protection Act 1975, provided:-
"19(1) A person who has lost employment as an employed earner by of a stoppage of work which was due to a trade dispute at his place of employment shall be disqualified for receiving unemployment benefit so long as the stoppage continues, …..; but this subsection does not apply in the case of a person who proves -
( a) that he is not participating in or financing of directly interested in the trade dispute which caused the stoppage of work; and
( b) that he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at his place of employment any of whom are participating in or financing or directly interested in the dispute."
Section 111(1) of the Employment Protection Act 1975 provides:-
"111(1) In section 19(1) of the Social Security Act 1975 (disqualification for unemployment benefit where stoppage of work due to trade dispute) -
( a) in paragraph (a) the words 'or financing' and the word 'and', and
( b) paragraph ( b),
are hereby repealed."
The result of this amendment is that an employee, who is laid off by reason of a stoppage of work due to a trade dispute at his place of employment is disqualified for receiving unemployment benefit unless he can prove (and the burden of proof is on him) two matters: first, that he is not participating, and, secondly, that he is not directly interested in, the trade dispute which caused the stoppage of work.
In the present case it is common ground that the claimant did not participate in the trade dispute between AUEW and the management of the factory. The sole question which has to be decided, therefore, (remembering that the burden of proving the negative is on the claimant) is whether she was "directly interested in the trade dispute" within the meaning of that expression as used in section 19(1) of the Social Security Act 1975, as amended by section 111(1) of the Employment Protection Act 1975. That question has already been considered by the insurance officer, the local tribunal and the commissioner, all of whom decided it adversely to the claimant. It has then been considered by the Court of Appeal, who disagreed with all the decisions below and decided the question favourably to the claimant. It is, I...
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