Welsh National Opera Ltd v Johnston
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Moore-Bick,Lord Justice Sullivan |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1046 |
| Docket Number | Case No: A2/2011/1556 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2012 |
[2012] EWCA Civ 1046
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE EAT (3 JUDGES)
UKEAT/0015/11/LA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Moore-Bick
and
Lord Justice Sullivan
Case No: A2/2011/1556
Mr Simon Cheetham (instructed by Eversheds LLP) for the Appellant
Mr Nicholas Smith (instructed by MLM Cartwright Solicitors) for the Respondent
Hearing date : 31 May 2012
Murray Johnston is a gifted musician. From 1974 until he was dismissed in September 2008 he was principal oboeist in the orchestra of Welsh National Opera (WNO). The reason for his dismissal related to his capability. He commenced proceedings in the Employment Tribunal (ET) alleging unfair dismissal. Following a four day hearing in October 2010, the ET concluded that the dismissal had been substantively and procedurally fair. Mr Johnston appealed to the Employment Appeal Tribunal (EAT). His appeal was allowed following a hearing on 20 May 2011 and the EAT remitted the case to the ET, differently constituted, for rehearing. WNO now appeals to this Court seeking to restore the decision of the ET on the ground that it was free from legal error.
WNO is an opera company of high repute. Between 1992 and 2001 its music director was Carlo Rizzi. He returned for a second period between 2004 and 2007 and again as a guest conductor after that. For present purposes, it is unnecessary to go into the details but it is clear that there were difficulties in the relationship between Mr Rizzi and Mr Johnston. They began to appear in 1994 but it was only after Mr Rizzi rejoined WNO in 2004 that they took the form of criticism of Mr Johnston's performance. In due course, the criticisms centred upon three aspects of Mr Johnston's playing, namely intonation, emission of sound and blending of sound. The first two are concerned with the relationship between the musician and his instrument. The third is concerned with the relationship between the sound produced by a particular musician and the sounds produced by the rest of the orchestra. There is a procedure whereby poor performance can be assessed in "audition". On 23 October 2006 Mr Johnston attended an audition at which he satisfied the assessors (including Mr Rizzi) in relation to intonation and emission of sound. The audition was carried out with a piano accompaniment. Thereafter, criticism was substantially confined to the blending of sound which was said to be capable of assessment only in an ensemble situation. The audition procedure was considered by WNO to be inapplicable to this type of perceived shortcoming. The issue did not go away and there was a volume of evidence about criticisms and communications through 2007 and into 2008. By July 2008 the relationship between the parties was deteriorating further and Mr Johnston instructed his solicitors. Through his solicitors, Mr Johnston was raising a formal grievance about his treatment suggesting that he had been undermined as principal oboeist, the response to which was that WNO was considering disciplinary action against him. The historic details are set out in the judgment of the ET and are further summarised in the judgment of the EAT. A blow by blow account is not necessary for present purposes. Suffice it to say that following a disciplinary hearing on 22 September 2008, Mr Johnston was dismissed, subject to a right of appeal and on 11 November 2008 his internal appeal was dismissed.
The issue at the heart of this case relates to the procedure adopted by WNO in relation to the unresolved issue of blending of sound and ensemble playing. Essentially, WNO took the view that shortcomings of that kind were unsuitable for assessment through the audition process because such an assessment could only be carried out in full ensemble conditions. It therefore dealt with the issue not under the "poor artistic performance" procedure which it had agreed with the Musicians' Union in 2003 but through a disciplinary procedure which was not in all respects the disciplinary procedure set out in the Welsh National Opera Company Handbook 2007 but was adapted from it. As the ET stated in paragraph 13 of its judgment:
"It was not [WNO's] case that the disciplinary procedure applied but it was [their] case that, since the WNO/MU agreement did not provide for the factual situation existing, [they] followed a procedure which was akin to the disciplinary procedure. [They] did not embark on the stages of the quasi disciplinary procedure, such as oral warning, written warning and final written warning, because they were conscious of the additional level of stress which this may place upon [Mr Johnston]."
The ET concluded that, by so doing, WNO was "acting within a reasonable range of responses". The EAT disagreed, holding that the judgment of the ET was "flawed by the misconstruction of the poor artistic performance procedure and its application to the facts of this case" (paragraph 53). Ultimately, the case turns on the scope of the agreement between WNO and the Musicians' Union, (the WNO/MU Agreement).
The WNO/MU Agreement
This collective agreement was made and implemented specifically for the orchestra of WNO in August 2003. The relevant provisions are in the following terms:
"1.17 Poor artistic performance
1.17.1 The contract of a Musician may be terminated on the grounds of poor artistic performance by the Company giving 13 weeks' notice after the following procedure has been followed:
• The Musician shall be given at least 4 weeks' notice that he/she is required to attend an audition.
• The Musician shall be entitled to ask for and receive a written statement of the reason for the audition.
• The Musician shall be entitled to have a personal representative sitting with the audition panel. The representative may be a member of the orchestra, a Union official or any other person, who shall sit as a member of the panel.
• The music for the audition shall be taken from the orchestra's current repertoire except that a prepared solo piece may also be required.
• The Company must inform the Musician within 7 days of the result of the audition.
• The Musician shall be entitled to a second audition, of which he or...
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