Norris & Ors v London Fire & Emergency Planning Authority UKEAT/0146/12/KN

Appeal against a decision that the ET did not have jurisdiction to hear the claimant’s claim of unlawful deductions on the basis that the claim was barred by s14(5) of the ERA 1996 because the deduction was made on account of his having taken part in industrial action, being a continuation of the earlier official action. Appeal allowed.

The claimant was a fire fighter who held star status, meaning that he was able to act up in the role of a more senior colleague. Industrial action took place and the claimant, along with others, refused to act up. However, when the industrial action ceased, the claimant continued to refuse to act up on the grounds that he was not contractually obliged to act up and he wanted to relinquish his star status. The claimant continued to have deductions made after the industrial action ceased and he claimed that these deductions were unlawful. The ET held that the claim was barred by section 14 (5) because the deduction was made on account of his having taken part in industrial action, being a continuation of the earlier official, s14(5) saying:

"Section 13 [being the principal operative section in Part II] does not apply to a deduction from a worker's wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker's having taken part in that strike or other action."

The claimant appealed.

The EAT allowed the appeal. On the Tribunal's findings of fact the employee's refusal to act up following the conclusion of the official action could not be regarded as a mere continuation of that action but constituted simply an individual refusal to undertake a task which he believed not to be required of him by the contract, and that accordingly the claimant could not be regarded as "taking part in industrial action" since (a) he was not taking action with a view to furthering any ulterior object and (b) he was acting on his own and not in concert with any other workers.

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Appeal No. UKEAT/0146/12/KN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 30 October 2012

Judgment handed down on 8 March 2013

Before

THE HONOURABLE MR JUSTICE UNDERHILL (SITTING ALONE)

NORRIS, HEARN & ROWSON (APPELLANTS)

LONDON FIRE AND EMERGENCY PLANNING AUTHORITY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants MR OLIVER SEGAL (One of Her Majesty's Counsel)

Instructed by: Thompsons 22-24 Worple Road Wimbledon London SW19 4DD

For the Respondent MR JOHN CAVANAGH (One of Her Majesty's Counsel)

Instructed by: Legal and Democratic Services London Fire and Emergency Planning Authority 169 Union Street London SE1 0LL

**SUMMARY**

UNLAWFUL DEDUCTION FROM WAGES – Industrial action

Firefighter objects to being asked to "act up" as watch manager but continues to do so under protest – Eventually refuses to do so in the context of official industrial action being taken by colleagues, where refusal to act up forms part of the action called by the Union; but continues to refuse on an individual basis following the conclusion of the action – Employer makes deductions in response to that refusal – Employee claims for unlawful deductions under Part II of Employment Rights Act 1996 – Tribunal holds that claim barred by section 14 (5) because the deduction was made on account of his having taken part in industrial action, being a continuation of the earlier official action

**HELD**, allowing the appeal, that on the Tribunal's findings of fact the employee's refusal to act up following the conclusion of the official action could not be regarded as a mere continuation of that action but constituted simply an individual refusal to undertake a task which he believed not to be required of him by the contract, and that accordingly the Claimant could not be regarded as "taking part in industrial action" since (a) he was not taking action with a view to furthering any ulterior object and (b) he was acting on his own and not in concert with any other workers – ****Bowater Containers Ltd v Blake** (EAT/552/81) followed; **Lewis and Britton v E Mason & Sons** [1994] IRLR 4 not followed**THE HONOURABLE MR JUSTICE UNDERHILL** INTRODUCTION
  1. Between 29 September and 24 December 2010 a large number of firefighters employed by the London Fire & Emergency Planning Authority ("the Authority") took official industrial action. The action fell short of a strike but consisted of various forms of what could broadly be described as working to rule. In response, the Authority made deductions of 20% from the wages of the employees concerned. In the case of most of them the deductions ceased when the underlying dispute was settled and the official action came to an end; but it is the position of the Authority that three employees, the Appellants before me, continued to take (unofficial) industrial action after 24 December, and in their cases the deductions continued.
  1. Some 368 firefighters, including the Appellants, brought claims in the Employment Tribunal under Part II of the Employment Rights Act 1996 claiming that the deductions were unlawful. One of the bases on which the Authority resisted the claims was that the Tribunal had no jurisdiction to entertain them by reason of section 14 (5) of the Act, which provides:

"Section 13 [being the principal operative section in Part II] does not apply to a deduction from a worker's wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker's having taken part in that strike or other action."

  1. The issue whether the claims were excluded by section 14 (5) was heard by Employment Judge Balogun, sitting at London South, on 6 and 7 October 2011. By a Judgment, accompanied by clear and thorough Reasons, which was sent to the parties on 15 November, she dismissed all the claims, including those of the Appellants, for lack of jurisdiction.
  1. The Appellants appeal against the dismissal of their claims in respect of the period following the ending of the official industrial action. They have been represented by Mr Oliver Segal QC. The Authority has been represented by Mr John Cavanagh QC. Both counsel also appeared in the Employment Tribunal. The case was very well argued on both sides.
THE BASIC FACTS
  1. The Appellants all held the grade of Crew Manager. Some crew managers are designated as "starred" ("CM*"), which means that they are recognised by the Authority as competent to act up in the role of Watch Manager (being the next grade up) and may from time to time be required to do so on a particular shift or shifts (for which they receive additional pay). When they do so it may be at a station other than their home station. Each of the Appellants was starred.
  1. It has always been the position of the Authority that once a crew manager becomes a CM* the additional responsibilities become part of his or her contract of employment. The Appellants dispute that and say that they can relinquish starred status, on reasonable notice, if they choose. That dispute is unresolved, but it is not necessary that I should decide it in order to decide the issues in this appeal, and I was not invited to do so.
  1. The subject-matter of the dispute which led to the industrial action that started on 29 September 2010 was described by the Judge as "proposed changes to shift times and other efficiencies proposed by the [Authority]" (Reasons, para. 4). Mr Segal suggested that that was an over-simplification and drew my attention to the terms of a letter from the Fires Brigades Union to the Authority dated 20 April 2010 which appears to define the issue as being not the proposed changes as such but the fact that the Authority was intending to introduce them without consent by means of mass dismissals coupled with offers of re-engagement on the new terms. I do not think that for present purposes that is a material distinction. The letter does not suggest that the Judge mis-described the underlying issue, which is referred to in it as, rather generally, "the issue of working hours"; and indeed a circular issued by the Union for the purpose of the ballot refers to "changes in working hours in respect of shift duty personnel".
  1. The industrial action called by the Union took various forms but it included a ban on acting up. There was apparently some confusion about whether that ban was intended to apply to CMs acting up as watch managers. I was told by Mr Segal, without contradiction from Mr Cavanagh, that the Union issued a "clarification" which appeared to say that that was not the intention, but also that that statement may have been more tactical than genuine and that many CMs did in fact continue to refuse to act up during the currency of the action. Those included the three Appellants. What is peculiar to their case is that they continued that refusal after the end of the action.
THE APPELLANTS' CASE
  1. It is the position of each of the Appellants that they had reasons for not wishing to act up as watch managers which pre-existed the industrial action and were independent of it. Although the reasons of each of the Appellants were different and they are acting as individuals and not as a group – an important point, for reasons to which I will return – it was agreed for pragmatic reasons that the cases of all three would be tested by reference to the evidence of only one of them, Steven Norris.
  1. Mr Norris in his witness statement put his case as follows:

"In 2009, I became aware of the fact that the shift patterns we had been undertaking were likely to be changed. For some time I had become frustrated with having to carry out duties at stations other than my own and had considered whether or not to relinquish my star attribute. However, once I heard that the shifts may change I worried that I would be sent to a station on the other side of London from my home, and that I may be there late if the new shifts allowed for it. It was because of this that I finally decided to notify the Respondent that I no longer wished to hold my star qualification."

He said that he wrote to the Authority on 7 September 2009 purporting to relinquish his star and that he re-affirmed his position in e-mails dated 19 and 23 September. There was in fact industrial action in progress at the time (different from the action with which we are concerned, although apparently the issues "included the CM*s"); but, he says,

"I felt that the issue of the * qualification was personal to me, and was not simply a part of any action by the [Union]."

However, the Authority disputed his right to relinquish starred status, and despite his having taken the position that he did in the correspondence referred to above – and, it appears, though this is not referred to in his statement, having raised a formal grievance – Mr Norris did not in fact refuse to act up at any time up to the start of the 2010 action: his first refusal was in fact in early October. He says that he made it clear to the Authority during this period that he was continuing to act to up "under duress", and only because he was not clear what the sanction might be if he refused and was worried that he might be dismissed. The statement continues:

"Eventually, in October 2010 I refused to act up. By this time, I felt matters had gone on too long and the issue in relation to the CM* had become very personal. Further changes were being made to our contracts and I simply felt that I had had enough of the Respondent's high handed approach. I also believed that I would not be dismissed for my actions in light of the fact that a friend of mine had also refused to act up and remained employed. I felt that, if he could stand up for what he believed in, I should also do the same, and support what both he and I believed to be the correct and fair position. Once I refused to act up, I was read a script by my station manager which stated that I would suffer a 20% deduction in my salary if I continued to refuse to act up. In light of the fact that I was no longer scared for my job, and the matter was by then of such importance to me, I reiterated my stance and have continued to refuse to act up to date."

Mr Norris concludes:

"Although I have been aware of the industrial action undertaken by the [Union] during my time as a [crew manager], the action taken by them has not influenced my wish to relinquish my * or caused me to do so in any way."

  1. Mr Norris gave evidence before the Employment Judge and was cross-examined by Mr Cavanagh. I have been shown both parties' notes of the cross-examination. The Appellants' note records the following exchange:

"JC So you were acting under protest in 2010?

SN Yes, but when became [clear] sanction was a 20% deduction, I was happy to take this.

JC But coincided with time of industrial action

SN I was back from leave.

JC Part of the same industrial action.

SN Could say part of industrial action but if you look back, you can see that since 2009 I felt I did not need star attribute."

(I have inserted the word in square brackets to bring out what is clearly the intended sense.) That appears in the note of the Authority's solicitors in slightly more condensed form as follows:

"JC So in 2010, you were acting up under protest, and the only time that you refused to act up was when your Union told you to refuse to act up?

SN I suppose so, you could say that it was part of the industrial action."

The substance of the two notes is the same, namely that for the whole of 2010 until the start of the official action Mr Norris was continuing to act up, albeit under protest, and that he only started to refuse when the official action started. Mr Cavanagh then turned to the position following the conclusion of the official action. There was the following exchange, according to the Appellants' note:

"JC Again in January you suffered deductions.

SN Yes – no out duty for me until this January date. Outside of industrial action.

JC Reason for you refusing to act up = dispute regarding whether CM* obliged to act up.

SN Yes.

JC Only pressure you can put on Brigade is to hold out.

SN Yes until someone sees sense that it is not contractual."

That appears in the Authority's solicitors' note as follows:

"JC … So the reason you were refused to act up was because?

SN It was because of the dispute and until someone saw sense, to say that acting up was not contractual."

The difference between the two notes is that in the former the characterisation of the reason for refusing to act up as a dispute about the obligation to do so comes from Mr Cavanagh, whereas in the latter it is volunteered by Mr Norris. I must take the former as more accurate: it is clear that the Authority's note-taker employs rather more condensation than the Appellants'.

  1. It was initially the Appellants' position that it followed from what they were saying about their motivation that section 14 (5) did not apply to any of the deductions made, whether before or after 24 December 2010. But at the start of the hearing before the Employment Judge Mr Segal conceded that any claimants holding CM* status who refused to act up as watch managers during the period of the official industrial action were thereby taking part in industrial action, and that concession applied to the Appellants too. Thus the only issue for the Employment Judge as regards the Appellants was whether their refusals to act up in the period after 24 December also fell within the terms of section 14 (5).
THE TRIBUNAL'S REASONS
  1. The Judge dealt with the case of the three Appellants at paras. 41-46 of the Reasons, which read as follows:

"41. That leaves the 3 Claimants who continued to refuse management's instructions after the official industrial dispute had been resolved. I only heard evidence in relation to one of them, SN (para 15 findings). It is now common ground that the refusal of [CM*s] to act up during the dispute was on account of industrial action. The question I have to consider is whether the status of SN's continued refusal changed by virtue of the official action having ceased or whether he continued the action.

  1. The body of case law on the definition of industrial action suggests that there is a requirement for employees to be acting in concert. In Seaboard World Airlines Inc v Transport and General Workers Union and Ors [1973] ICR 458, NIRC, industrial action was defined as concerted action which is taken in order to put pressure on an employer in an industrial context. A similar definition was applied by Lord Templeman in Miles v Wakefield above. However, in the case of Lewis and Britton v E Mason and Sons [1994] IRLR 4, the EAT held that the question of whether an employee is taking part in industrial action is a question of fact alone and it was open to the tribunal to find that a single employee acting alone could be involved in industrial action where the conduct was designed to coerce the employer to improve existing terms and conditions of employment.
  1. There was no evidence to suggest that SN was acting in concert with others and that has not been the case put forward by the Respondent. The question therefore is whether the lone actions of SN, which he contends are personal to him, in continuing to refuse to act up constituted industrial action. The commencement of SN's refusal to act up coincided with the commencement of the official dispute. That dispute was over proposed changes to shift patterns and other efficiencies and the action short of a strike was, according to the evidence of [a witness for the Union], to put pressure on the Respondent to reach a deal that members could live with in relation to shift patterns.
  1. During the period of the collective dispute, SN's personal reasons for refusing to act up were irrelevant. However they are relevant in deciding whether his continued refusal to act up is a continuation of that dispute.
  1. At paragraph 4 of his witness statement, SN states that he decided to relinquish his CM once he heard that the shifts may change as he was worried that under the new shift he would be sent to a station on the other side of London from his home, thereby resulting in him working late. As we know, the Respondent refused to grant that request and SN has remained in dispute with the Respondent over this issue. That dispute, like the collective dispute, is about shift patterns. I am therefore satisfied that SN's refusal to act up was a continuation of one of the collective issues and that his actions were designed to coerce the Respondent into improving his existing terms and conditions of employment, i.e. by allowing him to relinquish his CM. It follows from this that SN was taking part in industrial action.
  1. In the absence of evidence to the contrary, I reach the same conclusion in relation to Matthew Hearne and Luke Rowson."
  1. The reference in paragraph 41 to "para. 15 findings" is to the Judge's earlier findings of fact about Mr Norris. Para. 15 of the Reasons reads as follows:

"On 7 September 2009, Steve Norris … wrote to the Respondent requesting to relinquish his CM and to revert to CM. He stated in evidence that he did so for personal reasons. Although at this time the most recent industrial action had not commenced, similar industrial action relating to an earlier dispute was in progress. In fact, SN states in his correspondence at the time that his request was in accordance with "the FBU industrial action*". His request was refused by the Respondent on the basis that he was contractually obliged to act up when requested to do so. SN unsuccessfully raised a grievance about the matter and in the event continued to act up (although he contends that this was under duress because of the fear of dismissal if he refused) until the most recent industrial action commenced, when he refused to do so. Since the conclusion of the dispute, SN has continued to refuse to act up and the Respondent has continued to deduct 20% from his salary. SN says that he does not believe that he is contractually required to act up and that this is the reason for his continued refusal to do so. SN confirmed in evidence that he was a willing participant in the recent Industrial Action and that everybody at his station complied with the union's instructions relating to the dispute."

THE BACKGROUND LAW
  1. I have set out the terms of section 14 (5) of the 1996 Act at para. 2 above. There is no definition in the Act of the phrase "strike or other industrial action", nor has it been the subject of any case-law in this specific context. The word "strike" is defined, in section 235 (5), but only for the purpose of certain specified sections, which do not include section 14. Nevertheless, it is worth quoting the definition, which reads as follows:

"'Strike' means -

(a) the cessation of work by a body of employed persons acting in combination, or

(b) a concerted refusal, or a refusal under a common understanding, of any number of employed persons to continue to work for an employer in consequence of a dispute,

done as a means of compelling their employer or any employed person or body of employed persons, or to aid other employees in compelling their employer or any employed person or body of employed persons, to accept or not to accept terms or conditions of or affecting employment."

The same phrase is also used more than once in the Trade Union and Labour Relations (Consolidation) Act 1992 and its predecessors – most obviously in section 238, which limits the rights of employees to claim for unfair dismissal where they were dismissed when taking part in a strike or other industrial action. In this context too it is not defined. Again, there is, at section 246, a definition of "strike" for some purposes: if the definition in the 1996 Act is arguably rather wordy, this might be said to err in the opposite direction, being simply

"any concerted stoppage of work".

  1. There has been a certain amount of authority on the meaning of the terms "strike" and "industrial action" as they appear elsewhere in the 1996 Act or in the 1992 Act (or their predecessors) or in other contexts; and I see nothing peculiar to those contexts which suggests that the meaning should be different in section 14 (5). I shall deal with the cases, so far as necessary, mostly in the context of my consideration of the issues below; but I should note the following points by way of preliminary:

(1) The courts have deliberately forborne from attempting any general definition of "industrial action", on the basis that whether particular conduct constitutes such action is best left to the experience and good sense of employment tribunals – see in particular Power Packing Casemakers Ltd. v Faust [1983] ICR 292, per Stephenson LJ at p. 300F, approving observations by May J in this Tribunal (p. 300 B-C); and Knowles v Fire Brigades Union [1997] ICR 595, per Neill LJ at p. 604 G-H.

(2) What constitutes industrial action for the purpose of the 1992 Act is a mixed question of fact and law. This was held explicitly by the Court of Appeal in Knowles (above, loc. cit.), after full argument, and the decision plainly supersedes an apparent statement to the contrary by Stephenson LJ in Coates v Modern Methods & Materials Ltd [1982] ICR 764 (see p. 776C), followed (reluctantly) by Browne-Wilkinson P in this Tribunal in Naylor v Orton Smith Ltd [1983] ICR 665.

(3) A refusal to perform a task may constitute industrial action even if there is no contractual obligation to perform it (as in the case of voluntary overtime): see Power Packers (above).

(4) It was established in Coates (above) that a person may be "taking part in" industrial action even if subjectively he or she does not share its objects.

THE APPEAL
  1. The Judge's reasons for finding that even after 24 December 2010 Mr Norris's refusal to act up constituted industrial action, as given in para. 45 of the Reasons, appear to comprise two elements, as follows:

(a) She found that because Mr Norris's wish to relinquish his CM only arose because acting up would be potentially more onerous in the context of the anticipated new shift patterns (see the first passage quoted from his witness statement at para. 10 above) it followed that his "dispute" about his CM status was "like the collective dispute, … about shift patterns" and thus that his refusal to act up "was a continuation of one of the collective issues".

(b) She found that his refusal to act up was "designed to coerce [the Authority] into improving his terms and conditions of employment, i.e. by allowing him to relinquish his CM*".

  1. Mr Segal's primary submission was that both elements in that analysis, and thus also the Judge's overall characterisation of Mr Norris's conduct as a continuation of his previous industrial action, were wrong. But he also contended, as a self-contained point of law, that that conduct could not constitute industrial action because no other employee was involved. I take first the primary submission.
  1. My starting-point is that where an employee refuses to carry out a task which he believes he is under no obligation to perform that does not, in the absence of any other element, constitute industrial action in the ordinary understanding of the term. It would indeed be very undesirable if the law were that a mere refusal to perform a non-contractual task constituted industrial action, because if an employee were dismissed for such a refusal – which on the face of it would normally be unfair – the effect of section 238 of the 1992 Act would (absent special circumstances) be that he would be unable to claim for unfair dismissal.
  1. That proposition seems to me self-evident, and perhaps for that reason it is not quite explicitly stated in any of the authorities to which I was referred. But it is in fact clearly supported by a passage in the leading judgment of Stephenson LJ in Power Packing (above). In that case **the employees had refused to work non-contractual overtime in response to the denial of a wage increase (see pp. 294-6). Stephenson LJ said, at p. 296 C-E:

"[Counsel for the employees] submitted [that] ... to constitute "industrial action," in the natural meaning of those words, on the part of an employee, there must be action in breach of his contract of employment. If he merely refuses to do something which he is not contractually bound to do, he cannot be taking part in industrial action. I would agree that if he refuses because he has a private commitment to visit a sick friend, or a personal preference for a football match, he is not taking industrial action. But that is not this case. If he refuses because he and others who refuse with him hope to extract an increase of wages out of his employers because their business will be disrupted if they do not grant it, that continued application of pressure is industrial action in the common sense of the words."

The essential point being made in that passage is that a refusal to do work which the employee is not contractually bound to do may become industrial action if but only if another element is present. The element identified by Stephenson LJ is the intention to apply pressure on the employer to achieve an ulterior object, i.e. (in that case) the claim for increased wages: he refers a little later to "a refusal used as a bargaining weapon" and, at p. 300G, to an employee taking action "with the object of applying pressure on the employer …". Notwithstanding the reluctance of the authorities to venture a comprehensive definition of "industrial action", the element of action being taken in order to apply pressure to further some ulterior aim seems plainly to be present in all cases of industrial action as generally understood. In Tramp Shipping Corpn v Greenwich Marine Inc [1975] ICR 261, Lord Denning MR, at pp. 265-6, quoted an earlier authority (itself deriving from a dictionary definition) defining a strike as "a general concerted refusal by workmen to work in consequence of an alleged grievance" and continued:

"If I may amplify it a little, I think a strike is a concerted stoppage of work by men done with a view to improving their wages or conditions, or giving vent to a grievance or making a protest about something or other, or supporting or sympathising with other workmen in such endeavour. It is distinct from a stoppage which is brought about by an external event such as a bomb scare or by apprehension of danger."

The passage from the speech of Lord Templeman in Miles v Wakefield which I quote at para. 26 (1) below incorporates the same element (as also does the statutory definition of "strike" in section 235 (5) of the 1996 Act). A mere refusal by an employee to do something which he or she is not obliged to do does not fit that paradigm.

  1. Although I have found it useful to make that point by way of preliminary, in order to feel firm ground beneath my feet, it is not in fact controversial, since the Judge did not rely on the mere fact of Mr Norris refusing to act up and found an additional element – or elements – as summarised at (a) and (b) in para. 17 above.
  1. I consider first what I have described as element (a), namely the Judge's conclusion that the "dispute" between Mr Norris and the Authority about whether he could relinquish his CM is the same as the collective dispute about shift patterns, so that the one is only a continuation of the other. I do not believe that that conclusion was open to her. The documentary evidence clearly showed, and it was not disputed, that Mr Norris had indeed wished to relinquish his CM before the dispute about shift patterns arose: indeed he had raised a formal grievance about it. Analytically the two "disputes" are obviously distinct: shift patterns and CM status are different things, and it would in principle have been entirely possible for Mr Norris to accept the change in the shift patterns while still maintaining that he was not obliged to act up. Mr Cavanagh contended that even if that is so at the theoretical level the evidence to which I have referred (see paras. 10 and 11 above) showed, and the Judge found, that the two were in practice "organically" inter-related. On Mr Norris's own account, it was only because of what he thought would be the effect of the impending change in shift patterns that he wanted to relinquish his CM, and it was only when the collective dispute about that issue started that he first actually refused to act up. I accept that as far as it goes, but I do not believe that it meets the point. The fact that Mr Norris would, as a matter of history, (probably) not have taken the stance which he has but for the changes in shift patterns and/or but for the collective dispute about them does not mean that it can be treated simply as an aspect or reflection of that dispute: they remain different things. The test is what happened after 24 December. If Mr Norris's personal grievance had been co-extensive with the collective dispute it would not have continued after the settlement; but it did. I do not see how his continuing refusal to act up can be treated as a continuation of the dispute about shift patterns when that dispute has been resolved.
  1. Nor can I accept "element (b)", namely that by refusing to act up as a watch manager Mr Norris was seeking "to coerce [the Authority] into improving his terms and conditions". That characterisation seems to me, with all respect to the Judge, wrong. This is not a case of the Power Packing type, where the employee refuses to do overtime or perform other tasks (whether contractually required or not) in order to achieve some other object. Mr Norris was simply refusing to do something which he did not believe that he was obliged to do. It could, it is true, be said that it was implicit in his stance that he wanted the Authority to accept that he was not obliged to act up; but that is simply a corollary of his maintaining his view of the contract. Where an employee refuses to undertake a task which he does not believe that he is contractually obliged to undertake it is artificial to say that he has a separate "object" of getting his employer to recognise that his position is correct. Although Mr Cavanagh, in the effective passage of cross-examination quoted at para. 11 above, obtained answers from Mr Norris helpful to his line of argument, the issue is not one of primary fact, on which the witness's answer might indeed be decisive, but of analysis.
  1. Having reached that point, I need not, strictly speaking, consider Mr Segal's secondary submission, namely that it is impossible for a single person to "take part in industrial action"; but the issue is one of some importance and I think I should do so. The Judge on this point referred to, and evidently relied on, the decision of this Tribunal in Lewis and Britton v E Mason & Sons [1994] IRLR 4: see para. 42 of the Reasons. The cases of the two appellants in that case, Lewis and Britton, are distinct, and for present purposes I am only concerned with the latter. Mr Britton was employed as a lorry driver. He was instructed by his employer to drive a lorry which had no proper heating in the cab. The journey was from Wales to Scotland and in winter: it was expected to be very cold. He refused to go unless he was paid a £5 "overnight allowance" in order to enable him to stay in a B&B rather than sleep in the cab. He was dismissed and brought proceedings for unfair dismissal. The employer contended that by reason of the predecessor provision to section 238 of the 1992 Act the industrial tribunal had no jurisdiction, because by refusing to drive the lorry Mr Britton had been taking part in industrial action. The tribunal had some difficulty with the point, not least because of a doubt whether a lone individual could be said to be "taking part in industrial action", but it nevertheless decided it in the employer's favour. It held that his instruction to drive the lorry was reasonable (see para. 9, p. 261) and that what had in fact occurred was that Mr Britton was refusing to do so in order to put pressure on him to pay him an additional £5. This Tribunal, Tuckey J presiding, held that that conclusion was open to the industrial tribunal on the evidence and could not be said to be perverse (para. 18, p. 262). On the "lone employee" point he said simply:

"As to whether one person may be able to be involved in industrial action on his own, we think that he may, and so this was a conclusion which was open to the Tribunal on the facts."

  1. The argument proceeded before me on the basis that Lewis and Britton was the only authority directly on the point, though Mr Segal referred me to dicta in other cases which appeared hard to reconcile with it. I have since, however, discovered and drawn counsel's attention to the earlier and unreported decision of Bowater Containers Ltd v Blake (EAT/552/81). In that case an employee who had an unresolved bonus query refused to work in a section of the employer's plant different from where he normally worked until the query was sorted out. He was then dismissed. The employer took the point that the tribunal had no jurisdiction because the employee was taking part in industrial action. That submission was rejected by this Tribunal, Neill J presiding, on two bases, one of which was:

"We do not consider that Mr. Blake's refusal to go to the rotary section constituted "taking part in ... industrial action". The words "taking part in" suggest some participation with other people or some concerted action and the provisions of Section 62(2) indicate that the action contemplated by the previous sub-section is action by at least two persons. Moreover in our view the ordinary meaning of the words "industrial action" does not include action by one person alone."

  1. I am therefore faced with conflicting authority. I have no hesitation in preferring Bowater. Both the points made by Neill J – which had also, I should say, been made to me by Mr Segal – seem to me to be right. As a matter of ordinary language, I agree that it is unnatural to refer to a single person "taking part in" action undertaken by no-one else: it is like one hand clapping. I also agree that in ordinary usage "industrial action" connotes action of some kind taken by more than one worker acting together. As to the latter point, there is a good deal of supporting material, which I can sufficiently summarise as follows:

(1) The authorities contain many references, albeit not in contexts where the point was directly in issue, to industrial action being collective in character. To take simply the most authoritative, in Miles v Wakefield Metropolitan District Council [1987] AC 539 (which was in fact referred to by the Judge) Lord Templeman said (at p. 558 F-G):

"… [I]ndustrial action involves a worker, in conjunction with all or some of his fellow workers, declining to work or declining to work efficiently in each case with the object of harming the employer so that the employer will feel obliged to increase wages or improve conditions of work or meet the other requirements put forward by the workers' representatives [emphasis supplied]."

Similar language is used in the various cases on the meaning of "strike" cited in Stroud's Judicial Dictionary, and in Tramp Shipping (above, loc. cit.): "industrial action" is of course the genus of which "strike" is a species.

(2) The definitions of "strike" quoted at para. 15 above use the terms "in combination" and "concerted". Again, I accept that these are not directly applicable, but they are indications of normal usage.

(3) The editors of Harvey on Industrial Relations and Employment Law say, at DI 2051, "the essence of industrial action is that it is a collective act".

  1. Mr Cavanagh submitted that as a matter of language it was not impossible to speak of one person "taking part in" industrial action, and that as a matter of substance there was no justification for requiring that it involve a plurality of actors, either generally or in any event in the context of Part II of the 1996 Act. The crucial element was the employee's intention to put pressure on the employer. There was no reason in principle why a lone employee might not withdraw his or her labour for that purpose, in which case the employer should be entitled to use the counter-weapon of a deduction of wages: the action would have the essential character of industrial action despite the absence of a collective element. Even if that is so, it does not in my view get round the difficulty of the natural meaning of the words. But I would add that the policy of Part II cannot be considered in isolation. The saving in section 14 (5) is a reflection of the general policy of the law to keep out of the battleground of collective action and employers' responses to it.
  1. Mr Cavanagh also canvassed in argument a case where a group of employees agreed that, in pursuit of some common object, only one of them – a "key worker" of some description – would withdraw his or her labour. I accept that in such a case the clear presence of a collective element might justify describing that employee as "taking part in" industrial action, despite the awkwardness of the language. But the present case is not of that type. It was common ground that each of the three Appellants was acting independently of the others (and indeed, I think, in ignorance of the others' stance). There was thus – subject to the question already considered of whether their action could be regarded as a continuation of the earlier official industrial action – no collective element at all.
  1. Although Mr Cavanagh understandably sought to rely on Lewis and Britton, it cannot be regarded as a strong authority. It has been criticised in the books: see in particular Harvey at *DI 2051-3 and Deakin and Morris Labour Law (6th ed) para. 11.74 (p. 1140). It was an ex tempore* decision. The relevant conclusion is not supported by any reasoning and there is no reference to any authorities: Mr Britton was unrepresented, and it is not clear how fully the point was argued. For the reasons already given I believe it was wrongly decided on the "single employee" issue. Though it is not strictly necessary to do so, I should also express my reservations about the conclusion of the industrial tribunal that the instruction to Mr Britton to drive the lorry notwithstanding the lack of a heater was lawful, which then permitted it to find that his refusal to do so without an additional payment was an attempt to obtain an "improvement" and thus to conclude that there was the necessary element of coercion. I might if I had been sitting in this Tribunal have been tempted to characterise that chain of reasoning as perverse. But in any event the decision on this aspect was simply that the conclusion of the industrial tribunal was open to it (Tuckey J taking the approach that the issue was one of pure fact – see para. 16 (2) above) and it is authority for no broader proposition.
  1. My conclusions thus far are not in any way inconsistent with Mr Segal's concession (see para. 12 above) that during the period of the official action the refusal of the Appellants, as well as the other claimants who were CM*s, to act up constituted industrial action. Whatever the distinction between them and the other claimants as regards their personal motivation, it would not realistically have been possible for them, in the light of Coates (see para. 16 (4) above)) to have maintained that they were not participating in the collective action so long as it was on foot; nor, I suspect, as loyal union members would they have wished in any event to dissociate themselves from it. So long as the action was in being, they were part of it. But that did not mean that their personal grievances could not re-emerge when it came to an end.
  1. It follows not simply that I regard the Judge's reasoning as flawed but that in my judgment the only possible conclusion on the undisputed facts is that Mr Norris's refusal to act up after December 24 2010 did not constitute participation in industrial action. Since it was on account of that refusal that the Authority made the deductions now complained of, I hold that section 14 (5) is no bar to the Appellants' claims. The appeal is allowed accordingly.
  1. I regret the time taken to produce this judgment, which is the result of the pressure of other work.

Published: 11/03/2013 08:10

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