Tracey and Others v Crosville Wales Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE OTTON,LORD JUSTICE BELDAM |
| Judgment Date | 31 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0731-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | EATRF 94/0468/B |
| Date | 31 July 1995 |
[1995] EWCA Civ J0731-10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Before: Lord Justice Beldam Lord Justice Waite Lord Justice Otton
EATRF 94/0468/B
MR J BOWERS (Instructed by Messrs Jack Thornley & Partners, Lancaster, OL6 6XP) appeared on behalf of the Appellant
MR J McMULLEN QC (Instructed by Messrs Wragge & Co, Birmingham B3 2AT) appeared on behalf of the Respondent
Monday, 31 July 1995
This appeal arises from the decision of a bus company to dismiss drivers who were taking part in industrial action. Some, but not all, of the dismissed drivers were later re-engaged. The Industrial Tribunal upheld the claims of those drivers who had not been re-engaged that they were to be deemed unfairly dismissed under the provisions of the Employment Protection (Consolidation) Act 1978 concerning selective re-engagement. The tribunal members took the view, at the same time, that the drivers as a whole (that is to say both those who had been offered re-engagement and those who had not) had conducted the industrial action in a way which contributed to their dismissal, but they held that they were precluded by the terms of the Act —as interpreted by authority at the level of the Employment Appeal Tribunal —from reducing the award to reflect such contributory conduct. They nevertheless made a finding, in case that holding should be overturned on appeal, as to what their conclusions in regard to contribution and the appropriate reduction in the awards to reflect it, would have been if they had possessed jurisdiction. The Employment Appeal Tribunal, feeling bound to follow a later authority in its own court in conflict with the first but only recently decided, allowed the appeal and held that the Industrial Tribunal had jurisdiction to abate the awards for contributory conduct. The appeal tribunal found at the same time that the tribunal had calculated the abatement on an inappropriate basis, and the claims were accordingly remitted to the Industrial Tribunal for the element of contribution to be re-assessed. The drivers now appeal to this court from the Employment Appeal Tribunal's holding that there was jurisdiction to find contributory conduct; and the bus company cross-appeals against the Employment Appeal Tribunal's order directing that compensation be remitted for re-assessment.
THE FACTS
These were set out in careful detail in the clear and comprehensive reasons of the Industrial Tribunal and were helpfully summarised by Mummery J in his judgment on behalf of the Employment Appeal Tribunal as follows.
Crosville Wales employed in its business 119 bus drivers, all members of the Transport & General Workers' Union. In June 1990 a wage review was due. In September 1990 an increase was agreed for the engineering staff, but not for the drivers. On 3rd October 1990 the Union decided to hold a secret ballot. The ballot held on 8th October 1990 resulted in a majority in favour of industrial action short of a strike or strike action.
A union meeting was held on Monday 23rd October. It was decided to operate a ban on overtime working and working on rest days from midnight on Saturday 27th October. This would have the effect of destroying the Sunday bus routes which were totally reliant on voluntary work from overtime and rest days.
The Divisional Manager, Mr Ellis-Jones, wrote a letter to all employees on 23rd October expressing regret at the decision to implement an overtime ban from Saturday in support of the pay claims. He pointed out that the Union representatives were aware of the company's grave financial position and that the company had made the best offer possible. He also stated that the proposed action was in breach of the agreed procedure and was taken before proper negotiations had been concluded. He concluded that he was particularly concerned about contract work, especially Sundays which, if disrupted, would be reallocated by the County Council to the company's competitors. That would result in a loss of jobs at Wrexham, a weaker financial position at the depot and less money for wages. It was conceded by Mr O'Leary, the Union's full time district officer, that the Union had not followed the agreed procedure for the avoidance of disputes contained in Appendix E to the Drivers' Instruction Book. In the event of failure to come to an agreement at depot level, the agreed procedure provided for a meeting between the local representatives, the depot official and local union officer and, if there was failure at that level, provision was made for a meeting between a Board member, the full time Trade Union official and the elected depot representative.
On 25th October there was a joint meeting at Flint of staff and management attended by Mr O'Leary and other representatives of the employees with representatives of the employers. No agreement was reached. On 27th October the ban on overtime and rest day working began, as threatened. The depot superintendent at Wrexham, Mr Poole, posted a notice in the garage announcing that an "open forum" had been arranged in the depot canteen for Tuesday 30th October. The purpose of the forum was to make sure that everyone was aware of the seriousness of the situation and the possible consequences of continuing the industrial action. During the course of 30th October various events occurred before the meeting. Mr Woolley, the Trade Union's Branch Secretary, and others went to see Mr Poole and asked him if he would take down the compulsory Sunday rota which he had issued following the meeting held on 25th October. Mr Poole refused. Later in the day Mr Woolley was informed that he, along with others who had attended the earlier meeting with Mr Poole, were suspended without pay. When the meeting took place in the canteen about 80% of the drivers were present and there was a mass walk-out. On the following day there was a meeting, which lasted only three or four minutes, at which the Union representatives asked for a written apology and a withdrawal of the suspensions.
On 1st November Mr Poole wrote to all employees advising them of the position relating to their decision not to work in accordance with their contracts of employment, and pointing out that each individual employee was in breach of contract and liable to dismissal. He contended that the ballot had not been correctly organised and was invalid and that, in view of the dire financial position of the depot, the company had no option but to require them to return to work by 3rd November for normal duty or they would be deemed to terminate their employment with the company.
The men did not return to work. On 5th November the drivers were dismissed by a letter from Mr Poole. On 13th and 15th November there were further meetings at which the Union representatives were told that the effects of the dispute meant that there was no question of taking all the drivers back. The best estimate was that 50/60 would now be required. The company rejected the Union's proposal that all the drivers should be taken back and that a redundancy exercise should be carried out. The company then carried out a recruitment exercise for replacement staff by notices at the Wrexham depot, press and local radio announcements and advice to local jobcentres. All the applications were considered, whether or not those applying had been involved in the strike action and had been dismissed. Every new employee was offered new terms and conditions of employment in line with the company's final pay offer to those employees who had been dismissed because of industrial action. All the strikers knew that the company was recruiting. They all had an opportunity of obtaining an application form, being interviewed and being considered for re-employment, but offers of re-engagement were not made to all of the employees who took part in the industrial action. The final figures were that 25 of those who had been dismissed applied. Those were all offered jobs, but only 22 of them took up the offers.
The strike effectively ended on 23rd February 1991 when the Wrexham depot was closed. The drivers at Wrexham were relocated along with the routes at other depots. The company continued to make losses and the Wrexham depot was eventually sold in July 1991.
THE PROCEEDINGS
73 of the dismissed drivers who had not taken up the re-engagement terms ("the applicants") brought proceedings for unfair dismissal. At a preliminary hearing on 28 and 29 August 1991 the Industrial Tribunal held that it had jurisdiction under S 62 of the Employment Protection (Consolidation) Act 1978 (to which reference will be made later) because the advertised terms of re-engagement were found to lack the necessary identity or comparability with the previous terms of working required by S 62 of the 1978 Act (to which I refer later). That decision was upheld on appeal to the Employment Appeal Tribunal.
At a substantive hearing in April 1993 the Industrial Tribunal held, on grounds which I shall mention a little later, that all the applicants had been unfairly dismissed.
An issue arose at that hearing as to whether the compensation payable to the applicants in consequence was liable to be abated for contributory fault, and if so to what extent.
The Industrial Tribunal held that they were precluded by the decision of the Employment Appeal Tribunal in Courtaulds Northern Spinning Ltd v Moosa 1984 ICR 218 ("Courtauld") from even considering contribution. In case they were wrong in so holding, the tribunal members stated the findings which they would have made if...
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Tracey and Others v Crosville Wales Ltd
...of the appeal. They are admirably summarised in the judgment of Mummery J., and I shall follow the example of the Court of Appeal [1996] I.C.R. 237 in repeating this part of his judgment almost verbatim. 6 Crosville Wales Ltd., the appellant, employed in its business 119 bus drivers, all me......