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Judgment - House of Lords - Tracy and Others v. Crosville Wales Ltd.  continued

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    "It has always been accepted that the general intention of Parliament lying behind section 62 of the Act is to prevent industrial tribunals from going into the merits or demerits of collective industrial disputes. Both counsel accept this to be the position. The detailed way in which Parliament sought to achieve this result is not entirely clear to us: however the general principle is well established. Strikes and other industrial action normally (although not invariably) involve the employees who are taking part in it in breaches of their contracts of employment. For example, the ordinary strike involves a breach of contract. So, in the present case, the industrial action taken by the applicant and his fellow employees involved a breach of their contracts although the dispute between the employees and the employers was not about the term which they breached. If an industrial tribunal is entitled under section 74(6) to reduce the compensation because of industrial action which constitutes a breach of contract, it will have to enter precisely the arena from which Parliament, in general, decide to exclude it.

          "In Nelson v. British Broadcasting Corporation (No.2.) [1980] I.C.R. 110, the Court of Appeal laid down that in order to justify a reduction in compensation under section 74(6) three things have to be established: first, blameworthy conduct by the employee; secondly, that such conduct contributed to or caused the dismissal; thirdly, that it is just and equitable to reduce the compensation by a given amount. It is possible to suppose that Parliament might have regarded industrial action involving a breach of contract as blameworthy conduct, although we venture to think this very improbable. But we find it impossible to accept that Parliament, in conferring the right to reduce compensation, can ever have intended an industrial tribunal to form a view as to the merits or demerits of any particular industrial action. Without forming such a view it would be impossible for an industrial tribunal to determine the proportion, if any, by which it was just and equitable to reduce compensation.

          "Industrial disputes are often very complex, having a long history and involving many contributory factors. In no area of English law of which we are aware are courts ever entrusted with the determination and allocation of blame in relation to industrial disputes. Section 62 of the Act of 1978 excludes industrial tribunals from considering whether an employer acted reasonably in dismissing an employee engaged in industrial action. It would be strange indeed if Parliament had intended that the industrial tribunal should consider what is effectively the same point when coming to consider the blameworthiness of the employee's conduct. We therefore reach the conclusion that it is not possible for an industrial tribunal to hold under section 74(6) that the industrial action in which the employee was taking part (whether or not it was in breach of contract) in itself justifies a reduction in compensation, since an industrial tribunal is unable to determine whether or not, and to what extent, it is just and equitable to make such reduction.

          "This does not exclude the possibility that there may be conduct other than the industrial action itself which could justify a reduction under section 74(6). Say, for example, that an employee who was on strike had in fact been dismissed for reasons other than that he was taking part in the strike. If the industrial tribunal came to the conclusion that such dismissal was even so unfair, it might well take the view that the employee's conduct which had caused his dismissal (as opposed to the industrial action itself) merited a reduction under section 74(6). For these reasons the industrial tribunal were in our judgment right in law in not making any reduction in compensation since they could not properly hold that it was just and equitable so to do."

      In the TNT case [1994] I.C.R. 1, on the other hand, Wood J. attached no such significance to the enactment of section 62. He said, at pp. 7-8:

          "Put very shortly, prior to the Employment Protection Act 1975, an employee who was dismissed on the grounds of industrial action was not to be considered unfairly dismissed unless the discriminatory factors were established. By the Act of 1975 the position was radically changed and an industrial tribunal was barred from considering whether a dismissal was fair or unfair unless a discriminatory factor was established. In Faust's case Stephenson L.J. therefore concluded, at p. 299: 'So industrial tribunals, presented with a complaint of unfair dismissal by an employee alleged to have taken part in industrial action, had from 1971 to 1974 to consider that action and the provisions against victimisation in the course of determining whether he had proved his complaint, but had from 1975 to 1978 and since to consider them in order to determine whether he could even try to prove it.'

    "Purchas L.J. in his judgment said, at p. 302:

    'Mr. Carr submitted . . . that . . . therefore the words of section 62 of the Act of 1978 could be given their plain and ordinary meaning, namely, once it was established that the employee was, at the date of his dismissal, engaged in a strike or other industrial action, the industrial tribunal could only enter upon a consideration of the merits of the case if it could be shown that the employee had been subjected to discriminatory treatment in the matter of dismissal or re-engagement. I agree with this submission.'

    "Thus, we have clear guidance on the purpose of section 62(1) and (2) of the Act of 1978."

Later Wood J. added, at pp. 8-9:

    "in our judgment, the Court of Appeal has shown the purpose behind section 62 and its effect. It goes to jurisdiction. The words used are 'shall not determine.' If through voluntary or involuntary 'discrimination,' which, as in the present case, could be for humanitarian or sound reasons in individual cases, an industrial tribunal is given jurisdiction, then it must carry out its statutory function and seek to do that which is fair, just and reasonable between the parties. All these surrounding circumstances will be examined as in any other case. The concession made in Courtaulds Northern Spinning Ltd. v. Moosa [1984] I.C.R. 218, the premise upon which the decision rests, is in our judgment unsound."

The full hearing before the industrial tribunal in the present case took place after the decision in the Courtaulds case but before the decision in the TNT case. The tribunal accordingly applied the former decision and held that it was not entitled to regard the participation of the complainants in the industrial action as a ground for reducing their compensation. The tribunal added, however, in paragraph 89 of its decision, that if it had been entitled to reduce the compensation on this ground it would have done so by 50 per cent., since the complainants and Crosville Wales were equally to blame.

By the time that the matter came before the Employment Appeal Tribunal the TNT decision had been given. The Employment Appeal Tribunal felt bound to follow this, the more recent decision in preference to the earlier Courtaulds decision. It therefore allowed the appeal of Crosville Wales, and also allowed a cross appeal by the complainants against the 50 per cent. reduction, ordering that this latter issue should be remitted to the industrial tribunal for consideration.

When the matter came before the Court of Appeal [1996] I.C.R. 237, Waite L.J. (himself a former President of the Employment Appeal Tribunal), in a judgment with which Otton and Beldam L.JJ. agreed, approached the matter in this way, at pp. 254-255:

          "The best starting point, as with all issues of statutory construction, must be the presumed intention of the legislature. Complex though the legislation may be, the intention is clear. It is to discourage discriminatory re-employment in the immediate aftermath of industrial action. The essence of discrimination, in such a context, is that there should be a picking and choosing from people who have been engaged in the same industrial action. A remedy against discrimination of that kind, and a power to determine issues of contributory fault on the basis of justice and equity, have both been features of the unfair dismissal legislation from its earliest origins. The intention must had been to enable the victims of discrimination to ask the classic question: 'Why pick on me?' and to have it answered in a way which will result in an employer who can supply no answer, or no entirely adequate answer, in having to pay such compensation to the victim as justice and equity may require.

          "In a case where A, B, C and D have all been dismissed while participating in the same strike or industrial action, and where A and B alone have been offered re-engagement, the industrial tribunal has a threefold duty. The first is to determine its own jurisdiction: that will involve scrutinising the relevant collective action for the purpose of determining whether it amounts to a strike or other industrial action and inquiring whether there have been any offers of re-engagement to the complainants and if so whether they pass muster under the Act of 1978 for identity or comparability. The second (assuming jurisdiction to be established) is to decide whether C and D have been unfairly dismissed because there was no qualifying reason, or no sufficient justifying reason, for the discriminatory failure to re-engage. The third (assuming that also to be established) is to determine whether C and D should be regarded as having contributed to their dismissal and if so what reduction (if any) it would be just and equitable to make in the amount of their compensation.

          "When the tribunal is exercising that third duty, it seems to me to be quite impossible that Parliament could ever have contemplated that it would be just and equitable to penalise C and D, the victims of the discrimination, by way of contributory fault, solely for conduct in which they had participated in common with A and B, the beneficiaries of the discrimination. What Parliament must be deemed to have contemplated is that there would be instances in which C and D had been engaged at the relevant time in activities of their own, which although connected with the common action had an identifiably distinctive impact upon the decision to dismiss. In such a case it would not only be appropriate but essential for the industrial tribunal to examine such activities and inquire whether they should be treated as causative or contributory to the dismissal and if so whether it would be just and equitable to take them into account as justifying an abatement of the compensation award.

          "The question, therefore, for the industrial tribunal at the stage of considering contributory fault is: 'Have these applicants been responsible, in addition to mere participation in the relevant industrial action, for any conduct of their own contributing to the dismissal which was sufficiently blameworthy to make it just and equitable to reduce their compensation?'"

In a later passage Waite L.J. added, at pp. 255-257:

    "When tribunals are faced with a dismissal that has been found to be unfair in circumstances of discriminatory failure to re-engage, they will be excluded (on grounds both of equity and of policy) from considering contributory fault if the only conduct relied on is the collective conduct represented by the industrial action in the course of which the dismissal occurred. That is not to say, however, that discriminatory failure to re-engage represents an area of the law from which contributory fault is wholly excluded. It is available to answer the demands of equity and justice in cases where the complainant can be shown to have been individually responsible for activities which are found to have been causative of, or contributory to, his dismissal. When that result is applied to the present case, the consequences in my judgment are as follows.

          "(1) Sections 73(7B) and 74(6) of the Act of 1978 fall to be applied as enacted without any implication that would apply them to failure to re-engage--rather than (or in addition to) dismissal. Sense can be made of the whole legislative scheme without the need to import words that Parliament has not itself used. The decisions in this respect of the appeal tribunal in both Courtaulds Northern Spinning Ltd. v. Moosa [1984] I.C.R. 218 and TNT Express (U.K.) Ltd. v. Downes [1994] I.C.R. were correct.

          "(2) The decision in Courtaulds was unquestionably correct upon its facts, because there was in that case no finding that the applicant has been responsible for any activities of his own which might have been adjudged blameworthy.

          "(3) Although that is the primary ground on which (by reason of its consistency with the scheme of the legislation as I have sought to analyse it) I would prefer to hold that Courtaulds was correctly decided, that decision was also in my judgment correct in its own chosen ratio, at pp. 224-225, namely that: 'it is not possible for an industrial tribunal to hold under section 74(6) that the industrial action in which the employee was taking part (whether or not it was in breach of contract) in itself justifies a reduction in compensation, since an industrial tribunal is unable to determine whether or not, and to what extent, it is just and equitable to make such a reduction.' (My emphasis.)

    "I would however add to that the qualification that in cases where the complainants have been shown to have been responsible for some additional conduct of their own, then the fact that such conduct occurred during, and as part of, the industrial action does not preclude the industrial tribunal from examining it separately and considering whether it contributed to the complainants' dismissal. If the judgment in Courtaulds intended, at p. 225B, to state that such instances should be restricted to cases where the complainant although dismissed while on strike had been in fact dismissed for reasons other than strike participation, I would myself regard that is too restrictive. There must, as I have already indicated, be cases in which it would be entirely reasonable and proper for the tribunal to find that the complainant, regardless of the reason for his dismissal, had by some conduct of his own additional to or separate from the mere act of participation in the action contributed to his dismissal.

          "(4) The decision in TNT Express (U.K.) Ltd v. Downes [1994] I.C.R I was incorrect upon its facts, for the same reason that Courtaulds Northern Spinning Ltd v. Moosa [1984] I.C.R 218 was correct; namely because there were no findings in that case either of any conduct by the complainants which distinguished them from their colleagues. The criticisms of the Courtaulds decision made in TNT were unjustified (subject only to the qualification that I have mentioned) and the purported grounds for distinguishing it were unsound. In so far as TNT held that an industrial tribunal is entitled to go beyond the value judgments it is permitted to make when examining some particular conduct of the complainant additional to mere participation in the dispute itself, and to pass generalised judgments on the merits of the collective action when viewed as a whole, it was wrongly decided and should not be followed.

          "(5) The industrial tribunal in the present case was similarly right to leave contributory fault out of account, because there was no evidence (and no suggestion) that out of the total dismissed workforce the 73 applicants had been responsible for any independent conduct of their own which might qualify for separate consideration on grounds of justice or equity for the purposes of assessing contributory fault. Their paragraph 89 findings do not therefore arise at all for consideration, although I would add that, if they did, they would be open to justified criticism as being precisely the sort of generalised judgment on the merits or demerits of collective action which offends the policy to which the appeal tribunal in Courtaulds [1984] I.C.R 218 rightly drew attention. In any future case in which the separate conduct of individual complainants fell to be considered for possible contributory fault, I would not expect findings of that general nature to be regarded by the tribunal as either appropriate or relevant."

      Both in his oral submissions and in the written submissions prepared by him and his junior Mr. McMullen has deployed a wide and scholarly range of arguments against these conclusions. If I do not deal with all of them it is not for lack of appreciation but because I cannot, for my part, find in this fragmented and constantly amended legislation a sufficient degree of consistency and logic to merit such a thorough analysis.

      Mr. McMullen's most telling argument, to my mind, was that as a matter of plain English the participation of the complainants in the industrial action involved both conduct and action on their part, and therefore brought them squarely within the terms of section 73(7B) and section 74(5). He reminded us of the emphasis placed by your Lordships House in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231, a case decided on one of the forerunners to section 62, upon the general principle that where Parliament had expressed itself plainly the courts had no right to depart from the language used. He criticised the formulation by Waite L.J. of the crucial question as

    "Have these applicants been responsible, in addition to mere participation in the relevant industrial action, for any conduct of their own contributing to the dismissal which was sufficiently blameworthy to make it just and equitable to reduce their compensation?" (Emphasis added.)

for writing words into the statute which were not there, and which greatly restricted its effect.

      Looking more generally at the statutory context he submitted that there was nothing in the terms of section 62 to suggest that the courts were precluded from taking account of particular conduct merely because it consisted of participation in an industrial dispute. That section merely laid the ground for determining whether those dismissed for taking part in such a dispute were entitled to claim, by reason of selective re-employment on the part of the employer, that their dismissal was unfair. Once the jurisdictional position had thus been established, the contention of the employee must be considered by reference to all of the circumstances including, in appropriate cases, the conduct of the employee and the equity and substantial merits of the case, under section 57(2)(b) and (3). The provisions of section 63 expressly required the consideration of any pressure which might have been exercised on the employer to dismiss the employee, if only for the purpose of leaving it out of account. (The same consideration is, of course, required by section 74(5) in the context of possible reduction of the employee's compensatory award by reference to contributory fault). Thus, as Waite L.J. had accepted, at p. 253G-H, the legislature is not in the least squeamish about involving industrial tribunals in the consideration of disputed issues of collective action.

      Mr. McMullen acknowledged that attention must be focused upon the conduct of the individual employee in order to determine whether it was blameworthy to a degree which would reduce or eliminate his compensation (a point clearly made in Parker Foundry Ltd. v. Slack [1992] I.C.R. 302 by Woolf L.J., at p. 308A-B, and by Balcombe L.J., at p. 311), but submitted that there was no reason why a number of individuals should not be equally to blame for the same conduct. He referred your Lordships to a passage from the judgment of Lord Denning M.R. in Williams v. National Theatre Board Ltd. [1982] I.C.R. 715 in which, albeit obiter, he had referred to the striking employees collectively as "guilty of most serious misconduct."

      Mr. McMullen further submitted that the need to focus upon the conduct of the individual employee who is claiming compensation invalidated the comparison drawn by Waite L.J. between the treatment of those who had been re-employed and those who had not. Waite L.J's point had been, of course, that if A, B, C and D had all taken part in the industrial action, but A and B had been re-engaged while C and D had not, it could not have been the intention of Parliament to penalise C and D who had suffered from the discrimination, while the equally blameworthy A and B had not suffered. But this, submits Mr. McMullen, is no different in principle from the situation in the Parker Foundry case [1992] I.C.R. 302 where two employees had been fighting, where one had been dismissed by the management but the other merely suspended, and where it was held that the compensation claimed by the former could properly be reduced by reference to his conduct alone, irrespective of the degree of blameworthiness which should be attached to the other employee.

      My Lords, persuasively as this final submission was put, I cannot accept it. For one thing it oversimplifies the comparison between the present case and the Parker Foundry case. In the Parker Foundry case, for good reason or bad, the management had regarded the other employee as being less culpable than the complainant, but had nonetheless punished him, though to a lesser degree. The issue raised in the case was whether for the purpose of assessing the complainant's compensation claim, the relative merits or demerits of his conduct as compared with that of the other employee should be taken into account and the decision was that it should not. In the present case there is no question of any difference between the relative blameworthiness or non blameworthiness of the employees concerned, A and B on the one hand or C and D on the other. This case, unlike the Parker Foundry case, is concerned with collective activity for which all those involved are equally responsible and for which all were dismissed.

      Secondly, Mr. McMullen's argument carries him too far, because if attention is to be focused upon the behaviour of the individual employee alone, the focus must not only exclude the other employees, but also the employer. This was expressly recognised by May J. in Allders International Ltd. v. Parkins [1981] I.R.L.R. 68, a decision referred to with approval by Woolf L.J. in the Parker Foundry case, at p. 310. Taken as a whole, the Parker Foundry judgments appear to me to militate against the arguments of Crosville Wales rather than in their favour. For in the case of collective action by a number of employees against their employer it is surely impossible to judge the blameworthiness or otherwise of a particular employee's conduct without reference to the conduct of the other employees concerned, and to that of the employer.

      This does not diminish the force of Mr. McMullen's arguments based upon the plain meaning of the words "conduct" and "action" and the statutory context in which they appear. It may well have been the intention of Parliament throughout that industrial tribunals should not become involved in the merits or de-merits of collective industrial disputes but, as Browne-Wilkinson J. said in the Courtaulds case [1984] I.C.R. 218, 224, "The detailed way in which Parliament sought to achieve this result is not entirely clear." The immediate and apparent purpose of section 62 read by itself is simply to make it plain that an employer who conducts a lockout or who carries out a wholesale dismissal of striking employees is prima facie immune from claims for unfair dismissal. If the matter rested there, then the section would be strong evidence of a legislative intention to keep the merits of industrial disputes out of the courts. But the reintroduction of the concept of unfair dismissal by way of the provisions regulating selective re-employment inevitably involves the possibility of the tribunal having to consider the case of the individual employee in the context of the industrial action and of the employer's conduct in applying the provisions of section 57 as notionally reworded. The difficulty for Crosville Wales in the present case is that when one comes to the final stage of deciding whether the dismissed employees' compensation should be reduced one encounters the first of the complications which I have referred to above: the fairness or unfairness of the selective re-engagement must be ignored. It is at this point, to my mind, and on this fairly narrow ground that the argument for the employer fails, because of the sheer impossibility of the task of allocating the blame for the industrial action to any individual complainant, the more so since the collective blame for the industrial action is shared by those who were re-engaged. I respectfully agree with Waite L.J. that this is a consequence which Parliament can never have contemplated. In order to reach this conclusion it is not, in my judgment, necessary to add any words to those which already appear in the Act. The conclusion simply gives effect to the statutory requirement that any reduction in the compensation of an individual employee should be, and should only be, such as is "just and equitable."

      I would accept that a broader approach must be followed at the earlier stage when the tribunal is considering whether, in a case of selective re-engagement, the particular employee has been unfairly dismissed. At that stage, particularly if the employee's conduct comes into the reckoning under section 57(2)(b), it may well be essential to compare the treatment accorded to that employee with the treatment accorded to others, and to have regard to the employer's conduct and to the general merits of the case. But even here I would stop short of accepting that the consideration of the matter by the tribunal must necessarily extend to the collective merits or demerits of the industrial action. The point is not before us and so it would be wrong to attempt to decide it, but one cannot simply brush aside the preponderance of judicial opinion over the last twenty years which has been to the effect stated by Phillips J. in Gallagher v. Wragg [1977] I.C.R. 174, 178:

    "But, of course, the whole policy of the law as enshrined in the Act of 1974 and the later enactments is to withdraw the law from the field of industrial disputes. There is a kind of legal laissez-faire or neutrality as soon as an industrial dispute breaks out."

      If that is not the policy of the law it might be argued that Parliament should have taken, or should now take, an opportunity to correct it.

      Putting the matter more generally, I agree with the conclusions stated by Waite L.J. on the subject of contributory fault. I agree in particular with the qualification or interpretation which he places upon the Courtaulds judgment in the third of his conclusions. Individual blameworthy conduct additional to or separate from the mere act of participation in industrial action must in principle be capable of amounting to contributory fault.

      It follows that I would dismiss the appeal. I would do so, however, with little sense of satisfaction about the justice of the result, or the state of the law which has given rise to it. This was not, after all, a case of deliberate victimisation by the employers, but they are being required to pay just as much compensation as if it had been. I find it difficult to accept that a policy of laissez faire or neutrality must necessarily lead to such a result. This area of the law appears to me one which would benefit from the attention of the Law Commission.


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.


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