Stock v Frank Jones (Tipton) Ltd

JurisdictionUK Non-devolved
JudgeViscount Dilhorne,Lord Simon of Glaisdale,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Scarman
Judgment Date02 February 1978
Judgment citation (vLex)[1978] UKHL J0202-3
Date02 February 1978
CourtHouse of Lords
Stock
(Respondent)
and
Frank Jones (Tipton) Limited
(Appellants)

[1978] UKHL J0202-3

Viscount Dilhorne

Lord Simon of Glaisdale

Lord Edmund-Davies

Lord Fraser of Tullybelton

Lord Scarman

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Stock against Frank Jones (Tipton) Limited. That the Committee had heard Counsel for the Appellants on Tuesday the 13th day of December last, upon the Petition and Appeal of Frank Jones (Tipton) Limited of Integrity House, 106 Birmingham Road, Wolverhampton, West Midlands, WV2 3NZ, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 2nd of February 1977, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of C. Stock (Spinster), lodged in answer to the said Appeal; and Counsel appearing for the said Respondent, but not being called upon; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 2nd day of February 1977, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Dilhorne

My Lords,

1

In November 1974, 53 out of over 60 women employees of the appellants joined the Transport and General Workers Union. On the 21st November the District Officer of the Union wrote to the appellants saying that 90 per cent. of their employees had joined it and asking for a meeting to discuss the setting up of a Procedure Agreement, Negotiating Rights and recognition of workers' representatives. This letter was answered by the appellants on the 28th November in which it was said that action would not be taken without a full board meeting, that the chairman was away and that a meeting would be held as soon as possible after his return. The next day, the 29th November, two women who had been instrumental in the concerted move to join the Union were dismissed.

2

As a result, on the 9th December some 35 of the appellants' employees went on strike seeking the reinstatement of these two women. On the 13th January 1975 the respondent was sent her cards and there is now no dispute that she was dismissed by the appellants.

3

Before her dismissal two women, or at least one, (there being some doubt about the second) who had taken part in the strike, decided to return to work and were allowed to do so. The respondent then claimed that she had been unfairly dismissed and sought compensation under the Trade Union and Labour Relations Act 1974. The Industrial Tribunal found against her but on appeal Phillips J. did not. The appellants' appeal to the Court of Appeal was dismissed and the appellants now appeal to this House.

4

The matter is governed by paragraph 8 of the First Schedule to that Act which, so far as material, reads as follows: —

"8.—(1) The provisions of this paragraph shall have effect in relation to an employee who claims that he has been unfairly dismissed by his employer, where on the date of dismissal he was taking part in a strike or other industrial action.

(2) If the reason or principal reason for the dismissal was that an employee took part in the strike or other industrial action, the dismissal shall not be regarded as unfair unless it is shown:

( a) that one or more employees of the same employer (in this paragraph referred to as 'the original employer') who also took part in that action, were not dismissed for taking part in it, or

( b) that one or more such employees, who were dismissed for taking part in it, were offered re-engagement on the termination of the industrial action and that the employee was not offered such re-engagement

and that the reason (or, if more than one, the principal reason) for which an employee was selected for dismissal or not offered reengagement was an inadmissible reason."

5

Paragraph 6(4) and (6) provide that if the reason or principal reason for the dismissal was that the employee "had taken … part at any appropriate time in the activities of an independent trade union", that was an inadmissible reason.

6

Mr. Yorke, for the appellants, did not suggest that any other part of the Act threw any light on the meaning to be given to paragraph 8. That paragraph replaced without material amendment section 26 of the Industrial Relations Act 1971.

7

It was not disputed that the respondent was an employee who was covered by paragraph 8(1). That sub-paragraph defines the class to whom paragraph 8 applies.

8

She claimed, and there is no dispute about this, that one or more of the appellants' employees who also took part in the strike were not dismissed for taking part in it, and that the reason for her dismissal was an inadmissible reason, namely, that she had taken part in the activities of an independent trade union. She thus claimed that the two conditions precedent stipulated in paragraph 8(2) were satisfied and that her dismissal was consequently to be regarded as unfair.

9

The intention of Parliament when enacting section 26 of the 1971 Act and re-enacting that in paragraph 8 is clear beyond all doubt from its terms. It was to prevent victimisation by an employer of persons who took part in a strike or other industrial action. The dismissal of all who took part in such action was not to be regarded as unfair, but discrimination between those who took part either by not dismissing some of those who took part or by re-engaging some, but not the claimant for compensation, of those who had been dismissed rendered the dismissal unfair if it was for an inadmissible reason.

10

The appellants contend that while they recognise that the intention of Parliament was to prevent victimisation, Parliament cannot have intended to render an employer guilty of unfair dismissal if he dismissed all those taking part in a strike or other industrial action at the time of dismissal, and did not dismiss at the same time all persons who had taken part but who had come back to work before the dismissals took place. Parliament cannot, it was urged, have meant that employers should be liable to pay compensation to all those taking part in a strike at the date of dismissal if they had allowed one person who had taken part to return to work. If that was the meaning, to avoid liability to pay compensation to those taking part in such action at the time of dismissal the employer would also have to dismiss those whom he had allowed to return to work and render himself liable to pay them compensation for unfair dismissal.

11

It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it" ( Coke 4 Inst. 330).

12

If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature.

13

The appellants contend that in view of the anomalies which they say would result from the interpretation the respondent seeks to have placed on the paragraph, to have paragraph 8(2) read as if it said:

"who also took part and at the date of the dismissal were taking part in that action".

14

As Stephenson L.J. said in the Court of Appeal, the paragraph does not so provide.

15

"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" said Lord Mersey in Thompson v. Goold & Co. [1910] A.C. 409 at p. 420. "We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself" said Lord Loreburn L.C. in Vickers Sons & Maxim Ltd. v. Evans [1910] A.C. 444 at p. 445.

16

I can see no justification for reading the words "and at the date of the dismissal were taking part" into paragraph 8(2)( a). So to do would be to limit the scope of the protection against victimisation given by the paragraph. Its language is clear and unambiguous. Criticisms are not infrequently made of draftsmen. I can see no ground for criticising the drafting of this paragraph or for concluding that the use of the past tense in paragraph 8(2)( a) was not deliberate and was an error in drafting.

17

Parliament might, if it had wished, have limited the protection against victimisation to those taking part in the strike or other industrial action, at the time of dismissal. It did not do so. Paragraph 8(2)( a) extends to all who took part in such action.

18

Much weight was sought to be placed on the anomalies which it was said would result from giving effect to the words used by Parliament. I am by no means satisfied that all the anomalies lie on one side, nor am I satisfied that dismissal of those allowed to return to work before the others engaged in industrial action were dismissed would necessarily render an employer liable to pay compensation, for under paragraph 17 of the Schedule a tribunal can only make an award of...

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