Tracey and Others v Crosville Wales Ltd
| Jurisdiction | England & Wales |
| Judge | LORD GOFF OF CHIEVELEY,LORD MACKAY OF CLASHFERN,LORD LLOYD OF BERWICK,LORD NOLAN,LORD CLYDE |
| Judgment Date | 16 October 1997 |
| Judgment citation (vLex) | [1997] UKHL J1016-5 |
| Date | 16 October 1997 |
| Court | House of Lords |
[1997] UKHL J1016-5
HOUSE OF LORDS
Lord Goff of Chieveley
Lord Mackay of Clashfern
Lord Lloyd of Berwick
Lord Nolan
Lord Clyde
and Others
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Nolan. For the reasons he has given, I, too, would dismiss this appeal.
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Nolan. For the reasons he has given, I, too, would dismiss this appeal.
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Nolan. For the reasons he has given, I, too, would dismiss this appeal.
My Lords,
This appeal raises the difficult question of the relationship between the provisions of the Employment Protection (Consolidation) Act 1978 concerning the refusal of an employer to re-engage striking employees who have been dismissed, on the one hand, and the provisions under which the compensation payable to unfairly dismissed employees may be reduced by reason of their contributory fault on the other hand. The question is one to which different answers have been given by the Employment Appeal Tribunal in earlier cases. There can, however, be no dispute about the correctness of the view expressed by Mummery J., giving the judgment of the Employment Appeal Tribunal in the present case, when he said: "The points canvassed in this appeal impinge on a socially sensitive, politically controversial and legally uncertain area of industrial relations."
Nor, since the decision of the industrial tribunal, has there been any dispute about the matters of fact which are relevant for the purposes 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.
Crosville Wales Ltd., the appellant, 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 3 October 1990 the union decided to hold a secret ballot. The ballot held on 8 October 1990 resulted in a majority decision in favour of industrial action short of a strike or strike action.
A union meeting was held on Monday, 23 October. It was decided to operate a ban on overtime working and working on rest days from midnight on Saturday, 27 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 23 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 added 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 25 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 27 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, 30 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 30 October various events occurred before the meeting. Mr. Wooley, the 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 25 October. Mr. Poole refused. Later in the day Mr. Wooley 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 per cent. 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 1 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 3 November for normal duty or they would be deemed to have terminated their employment with the company.
The men did not return to work. On 5 November the drivers were dismissed by letter from Mr. Poole. On 13 and 15 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 23 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.
In the meantime, complaints of unfair dismissal had been made by 73 of the drivers. A preliminary hearing was held on 28 and 29 August 1991 by an industrial tribunal under the chairmanship of Mr. Leo Blair in order to determine whether the tribunal had jurisdiction to hear the complaints.
This procedure was necessary because of the terms of section 62 of the Employment Protection (Consolidation) Act 1978 as amended by the Employment Act 1982. These prohibitions have now been re-enacted in section 238 of the Trade Union and Labour Relations (Consolidation) Act 1992, but I shall refer to the Act of 1978 as amended because this was the statute in force at the time when the events which have given rise to the present case took place. Section 62 provides:
"(1) The provisions of this section shall have effect in relation to an employee (the 'complainant') who claims that he has been unfairly dismissed by his employer where at the date of dismissal -
(a) the employer was conducting or instituting a lock out, or
(b) the complainant was taking part in a strike or other industrial action.
"(2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -
(a) that one or more relevant employees of the same employer have not been dismissed, or
(b) that any such employee has, before the expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement.
"(3) Where it is shown that the condition referred to in paragraph (b) of subsection (2) is fulfilled, the prohibitions of sections 57 to 60 shall have effect as if in those sections for any reference to the reason or principal reason for which the complainant was dismissed they were substituted a reference to the reason or principal reason of which he has not been offered re-engagement.
"(4) In this section …
(b) "relevant employees" means - …
(ii) in relation to a strike or other industrial action, those employees at...
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