FW Farnsworth Ltd v McCoid [1999] EWCA Civ 1064 (23 March 1999)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD WOOLF, MR: This appeal turns on the meaning of three words, those words being "as an individual" in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The section, so far as relevant, reads as follows: "(1) An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for so doing." Subsection (5) of the section provides that: "An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of this section." If an employee brings a complaint to an Industrial Tribunal under subsection (5), the Industrial Tribunal, if he is successful can provide a remedy which, so far as this case is concerned, would be limited to a declaration and, possibly, compensation. The matter came before the Industrial Tribunal and then before an Employment Appeal Tribunal on a preliminary point. In this case it would have been preferable if the matter had not been dealt with in that manner. This is because it would probably have avoided the need for the appeals if the issue had been dealt with on the facts found by the Industrial Tribunal. The issue which divides the parties can be stated shortly. It was whether Mr McCoid, the appellant, was discriminated against because he was a union Shop Steward, or was he discriminated in his capacity, which a tribunal could describe on the facts was as an individual. I would interpret the three words in dispute as capable of applying to this case. That was the view of the chairman of the Industrial Tribunal. It was also the view of the Employment Appeal Tribunal, the chairman of which was His Honour Judge Butter QC, which gave a decision on 27 March 1998. There is a difference of opinion between the employer and Mr McCoid as to the background facts which resulted in his being removed from his position as a Shop Steward. There is, however, no doubt that he has been "derecognised". The employers' case is that he was derecognised because the way he conducted himself meant that he was not suited to hold the office of Shop Steward. The version of events of Mr McCoid is that: "....my employer has deliberately and systematically sought to deter me from effectively carrying out my duties as a Shop Steward through continual complaints against me and threats of de-recognition. This intimidation and harassment has been making my life intolerable and I am convinced that the company is deliberately trying to provoke me into either voluntarily resigning my position or into doing something for which they can take action against me." While there is a dispute as to why Mr McCoid was derecognised, what is not in dispute is that his terms of employment were not affected by that action. The only effect of the action taken by the employer is to deprive Mr McCoid of having the status and being able to perform the activities of a Shop Steward on behalf of his fellow employees. The employers read the opening words of subsection 1(1) so that their effect is that there has to be action short of dismissal taken against the employee as an individual by his employer, the words "as an individual" being interpreted as meaning "in his capacity as an employee". The employers say it is not sufficient if the action, short of dismissal, which was taken was in a capacity which only related to his position as here, a Shop Steward. That is an approach which I consider is inconsistent with the general intent of section 146(1)(b). The purpose of section 146(1)(b) is to allow an employee, who has as an individual, in the claim, been subject to victimisation, to put his allegation or complaint before an Industrial Tribunal. If Mr McCoid cannot do that, because he was only affected in his office as a Shop Steward, that would involve inserting into the legislation words which do not appear, namely, "as an individual in his capacity as an employee" or such similar words to, "as an individual employee". The addition would enable a distinction to be drawn between actions short of dismissal, in the capacity as an employee, and actions short of dismissal in the capacity of, for example, a Shop Steward. The argument, which has been skilfully developed by Mr Bowers on behalf of the employers would have had no prospect of success in my judgment but for the decision of the Court of Appeal in the case of National Coal Board v Ridgeway [1987] ICR 641. That was a decision of this court by a majority, the majority consisting of Nicholls and Bingham LJJ with May LJ dissenting. The provision which the court was there considering is section 23(1)(a) of the Employment Protection (Consolidation) 1978. However, the successor of that provision is not materially different. In that case, there had been a dispute between the National Coal Board and the National Union of Miners, which resulted in members of a rival trade union, the UDM, being paid an increase of wages which did not apply to the members of the NUM. The applicants complained to an Industrial Tribunal that the increased payments to the members of the UDM was action taken, short of dismissal, against them as individuals contrary to section 23(1)(a) of the Act. It was that dispute which eventually came before the Court of Appeal. By a majority the Court of Appeal came to the conclusion that the section applied and the members of the NUM had been affected as individuals because they had received pay which was less than the pay received by the members of the rival union, albeit that this was a consequence of a dispute between the National Coal Board and the National Union of Mine Workers. The facts here are obviously very different. That is an important matter to bear in mind when considering what was said by Nicholls and Bingham LJJ in that case. Under the heading "As an Individual" on page 657, Nicholls LJ recited the submission of the NCB that: "When action is taken in a case where the true context is collective as opposed to individual, the action is not against the employee 'as an individual' even though he is affected. That is this case: the applicants were caught in the cross-fire of an engagement between the UDM and the NUM." As to that submission Nicholls LJ says: "I cannot accept this. It seems reasonably clear that the phrase 'as an individual' was included in section 53 of the Employment Protection Act 1975 (which was the forerunner of section 23 of the Act of 1978) to exclude from the ambit of the right conferred on employees by that section conduct of the kind found in Post Office v Crouch [1974] ICR 378. There the Post Office refused facilities for trade union activities on its premises to one particular union, and Mr Crouch, who was a local branch organiser of that particular union, made a complaint under section 5 of the Industrial Relations Act 1971. Under section 5(2) it was an unfair industrial practice for an employer to 'discriminate against a worker' by reason of his exercising any of his statutory rights. The section contained no words corresponding to the phrase 'as an individual.' Nevertheless it was argued that any discrimination there was against the union and not Mr Crouch personally. That argument was rejected. Lord Reid said, at p 401: 'It was argued that here any discrimination is against the TSA and not against Mr Crouch personally. But discrimination against a man's trade union generally affects him personally. The prejudice to the man himself may be so small as to be negligible. But where it is substantial and a necessary consequence of the discrimination against the trade union and this must have been known to the employer the employer has in fact so acted as to worsen the man's position in comparison with that of a man in another union against which there has been no discrimination. That appears to me to be well within the mischief against this provision is directed and to come within its terms.'" Nicholls LJ continues at page 658: "Against that background it seems to me that the expression 'as an individual' in what is now section 23 of the Act of 1978 was intended to preclude adverse action taken against a union being treated ipso facto, on the reasoning adopted in the Crouch case, as action taken against the employee. Adverse action taken against a union is not, by reason only of any consequential effect it may have on members or officers of the union, to be treated as action against individual employees. To be within the section the action has to affect the employee otherwise than merely qua member or officer of a union." One can understand why Mr Bowers sees that paragraph as assisting his case. However, in my judgment that paragraph of Nicholls LJ's judgment has to be understood in the context of the facts which he was considering. In that case, as in the case of the earlier decision of Post Office v Crouch , the action which had been taken had been taken against the union as a whole, not against an individual who was a union official. Before the words "as an individual" were inserted into the relevant section, Mr Crouch was entitled to a remedy, but not afterwards. However, in this case, unlike National Coal Board v Ridgeway , there was no action against the union, as a union, the only action was against Mr McCoid who happened to be a Shop Steward. That was action against a person who is an individual and meets the requirement of the subsection which we are considering. In the case of Ridgeway , Nicholls LJ, as I understand his judgment, was seeking to distinguish the situation where there is action against a union which has no direct effect on individuals as individuals, such as in the Crouch case, from a situation where there is action against a union but the individuals are affected in their position as an employee. Turning to the judgment of Bingham LJ, he deals with the question of "as an individual" commencing at page 670. He indicates that both sides were agreed that the inclusion of those words was a legislative response to the decision in the Crouch case. He then adds at page 671 this statement: "The purpose of including the words 'as an individual' in section 53(1) of the Act of 1975 and then in section 23(1) of the Act of 1978 was, as I infer, to make plain that the action (short of dismissal) of which an employee is entitled to complain must be taken by his employer against him as an individual and that he cannot complain of action which only affects him in his capacity as a member of an organisation or body which is the subject of the action. It is to exclude indirect or derivative complaints. The board drew a distinction between action directed against the applicants and action which merely affected them, and urged that the purpose of these words was to exclude action where the true context of the action was collective. Reliance was placed on an authoritative statement of the late Mr Jon Harvey QC in his work on Industrial Relations and Employment law, I/1033: 'the individual cannot complain if he is wounded in what is a genuine collective engagement; but he can complain if the employer tries to pick him off by sniper fire.'" In this case, there is, as I have sought to suggest, no genuine collective engagement. Mr McCoid is complaining that his employer has tried to pick him off by sniper fire. At page 672 of the judgment Bingham LJ adds: "While synonym and metaphor may of course be valuable in illuminating the meaning of an obscure phrase or provision, there is a danger in straying very far from the language which Parliament has used to express its meaning, the more so when that is simple and familiar language. That is the case here. The expression 'against him as an individual' is not too difficult to understand. The questions to be asked by the tribunal were two-fold: (1) Is the action (assuming it to be such) complained of capable in law of being regarded as taken against this applicant 'as an individual?' (2) If so, is it on all the facts correct so to regard it? " Bingham LJ then added on page 673 a sentence to which Mr Bowers attaches particular importance: "It was a direct loss to them as individuals. Their complaint was not indirect or derivative." That is referring to the loss of salary of the employees of the NUM. What Bingham LJ said in Ridgeway fully explains the decision of the majority of the Court of Appeal in that case. It is important to understand the words used in that context. Turning to the questions posed by Bingham LJ, I would answer them: "Is the action (assuming it to be such) complained of capable in law of as being regarded as being taken against this applicant 'as an individual'?" in the affirmative. I would say that it is difficult to see any application of that phrase to the facts of this case which results in other than a positive answer. The next question is, "If so, is it on all the facts correct so to regard it?" It seems to me that that question is not to be answered by an appellate court but by an Industrial Tribunal on the facts which are before them. Properly understood, there is nothing in the Ridgeway case which is inconsistent with my first impression as to what is the proper interpretation of section 146(1). I am reinforced in that interpretation by the fact that Mr Bowers accepted,, when making his submissions to this court, that even if (contrary to his contention) this is action taken against Mr McCoid as an individual, his clients will still have a defence if they can establish the facts on which they rely in relation to Mr McCoid's complaint. This is because the action would not have been taken against Mr McCoid for the purpose of preventing or deterring him from taking part in the activities of an independent trade union. They will have been taken for the purpose of removing somebody from the office of Shop Steward who was not an appropriate person to fulfil the role of a Shop Steward. Mr Bowers says that, if established, that is an answer to the complaint. If the interpretation that I have been suggesting is the correct interpretation, it will not deprive the employers of a defence on the merits. However if the employers' interpretation is right, it will mean that an employee who is a Shop Steward could be victimised and would have no remedy whatsoever before an Industrial Tribunal as long as the action taken by the employer was limited to affecting the employee in his capacity here as the Shop Steward. It could be extremely damaging to an employee to be derecognised as a Shop Steward. That would be a severe reflection upon his credibility. It is the intent of the Consolidation Act to provide a remedy in those circumstances. Mr Bowers says no, that is the type of case which it is not intended should be subject to the jurisdiction of an Industrial Tribunal. He submits that this would be a dispute as to collective arrangements between a trade union and an employer. It would not be a dispute between an employee and an employer. I do not see the case in that way. I understand that the words "as an individual" are inserted to exclude collective disputes from the ambit of section 146, but this is not such a dispute. This is a dispute where an employee is complaining about victimisation in the circumstances described in section (1)(b). It should go before an Industrial Tribunal. The view I have expressed is entirely in accord with the views of the Industrial Tribunal's chairman and the Employment Appeal Tribunal. In an area such as this, where one is dealing with ordinary words, it is important that this court pays attention to the views of those who are day in and day out having to apply this legislation. They have a feel for this legislation. In the case of the Employment Appeal Tribunal, unusually you have a judge sitting with two lay members. The two lay members are from either side of industry and are there to bring to bear on the application of this legislation their knowledge of the life within the industry. They can take advantage of that knowledge in applying ordinary words, such as those with which we are concerned, to the facts of a particular situation. This is a case where the appeal should be dismissed. LORD JUSTICE OTTON: The issue is whether the Employment Tribunal erred in law in concluding that the derecognition of the respondent as a Shop Steward of his Union was action taken against him as an individual contrary to section 146 of the Trade Union Labour Relations (Consolidation) Act 1992 ("TULRA"). When the matter came before the chairman of the Industrial Tribunal, he said: "In this case, the action of de-recognition taken against the applicant has, in the ordinary sense of the expression, been taken against him as an individual. Furthermore, the applicant by his representative, Mr Tiplady, has argued, having regard to the grounds of complaint, that the sexist comment giving rise to the applicant's de-recognition has been used by the respondent as a pretext for ridding itself of a troublesome union official. It would be astonishing if the Tribunal was precluded, which had the effect of preventing the applicant from taking part in the activities of an independent trade union, related to him as an officer." In my judgment the conclusion in the first sentence is both succinct and correct. The chairman is more experienced than I am in the field of employment law and, in particular, the concept of victimisation. He has correctly given the expression "as an individual" its everyday meaning and has adopted a pragmatic approach which is appropriate for a dispute arising out of employment. It would be surprising if an employee were not able to complain that his employer has penalised him for his trade union activities by singling him out for derecognition. In the course of Mr Bowers' argument, there was considerable discussion of the decision of this court in National Coal Board v Ridgeway [1987] ICR 641 and the dicta of Nicholls and Bingham LJJ, as they then were. The decision was also considered both by the chairman and by the Employment Appeal Tribunal. I found neither the decision nor the dicta of much assistance. The Court of Appeal was addressing an issue which is not before this court. Their Lordships were concerned with the question whether action taken against a trade union was also to be regarded as action against the individual. In this case the employers have not taken action against the trade union as an organisation. It therefore cannot be said that Mr McCoid is only an incidental casualty. The action in derecognising him as a Shop Steward was taken against him specifically for reasons which related uniquely to him. The Employment Appeal Tribunal concluded that on their true construction, the words "as an individual" in section 146 were intended to create a distinction between those cases where an employee was picked on and victimised and those where he really suffered as a rank and file member of the trade union and had only a derivative claim. The tribunal also concluded that this was not merely a battle between an employer and a trade union, and that the action which was taken directly (or may have) affected the employee as an individual. In my judgment he was directly affected. He has been deprived of the status of Shop Steward and the opportunity to represent the interests of those who elected him to office. On this analysis the agreement between Farnsworth and the T&GWU has no relevance. On the proper construction of the section, the Employment Appeal Tribunal did not err in law in concluding that the appellant's action in derecognising the respondent as a Shop Steward was action taken against him as an individual. I, too, would dismiss this appeal. LORD JUSTICE WARD: Mr Bowers QC submits that the test in National Coal Board v Ridgeway [1987] ICR 641, which we are bound to follow and to apply, is that which was stated by Nicholls LJ at page 658F where he said: "To be within the section the action has to affect the employee otherwise than merely qua member or officer of a union." It was also stated by Bingham LJ at page 671, where his Lordship said: "The purpose of including the words 'as an individual' in section....was, as I infer, to make plain that .... (the employer) cannot complain of action which only affects him in his capacity as a member of an organisation or body which is the subject of the action. It is to exclude indirect or derivative complaints." If those tests are applicable here, and are to be strictly applied, then I see the force in the appellant's submission. The action taken against Mr McCoid was an action brought against him in circumstances which he describes in his application to the Industrial Tribunal in these terms: "I consider that I have been victimised by my employer for legitimate Trade Union activities in my role as Shop Steward during the period referred to in the attached Schedule of Incidents." Thus, submits Mr Bowers, the applicant was complaining of action taken against him as a Shop Steward, not as individual employee. In further elaboration of his complaint he stated that he believed that: "This intimidation and continual threats of derecognition are being used as a substitute for disciplinary action. This is not a sanction that can be used against ordinary Union members and I therefore consider that it constitutes action short of dismissal." The consequence of the derecognition was the loss of self esteem and the esteem of his fellow employees as the holder of the office of Shop Steward with the privileges and powers, as well as the responsibilities, that it gave him. Since it affected him qua officer, and since the detriment flowed indirectly and was derivative from the loss of office, it was, submits the employer, outside the purview of section 146. There was no change to his position as an employee in which capacity he lost nothing. Mr Bowers submits that "individual" in section 146 is used as an adjective and not as a noun. The employee has the right as an individual employee, and as an individual employee his position did not change. I confess to having found it quite difficult to escape that logical application of the test, if it be such, as it was expressed by Nicholls and Bingham LJJ, and I was long minded to allow the appeal. However, I began to have doubts as soon as Mr Bowers in response to my probing acknowledged that he would give the same answer where action was taken against an individual Shop Steward, which was wholly discriminatory, aimed at removing him for no other reason than that his face did not fit and that by dint of doing his job as a Shop Steward so assiduously yet properly, he had become a thorn in the flesh of the employer. Mr Bowers' justification for such an extreme denial of a remedy for apparent victimisation remained the same as he advances in the case of Mr McCoid, namely, that since the company neither appointed nor could dismiss the Shop Steward, who was appointed an officer of the union by the union, the employer had to engage in a collective dispute with the union and "lock horns with the union" (Mr Bowers' words) to enforce the agreement made between the employer and the union, subject to the intervention of ACAS and to the operation of the grievance procedures provided for therein. He submits that the purpose of adding "as an individual" to the predecessor section was to leave collective bargaining free; that is to say, free from interference by the court. He drew the contrast with sections 44 to 47 of the Employment Rights Act 1996 where those words do not appear. He borrowed loosely from the judgment of Phillips J in Gallagher v Wragg [1977] ICR 174 at 178H that: "....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." Mr Linden, on behalf of the respondent, challenges those submissions. I bow to the experience of the chairman who said in a passage already read by Lord Justice Otton: "Furthermore, the applicant by his representative, Mr Tiplady, has argued, having regard to the grounds of complaint, that the sexist comment giving rise to the applicant's de-recognition has been used by the respondent as a pretext for ridding itself of a troublesome union official. It would be astonishing if the Tribunal was precluded, which had the effect of preventing the applicant from taking part in the activities of an independent trade union, related to him as an officer." It seems to me that one must read the judgments of the majority in National Coal Board v Ridgeway with an eye to the nature of the dispute which prompted their observations. It arose out of the miners' dispute where members of one union were more favourably treated than members of the other. The action of not paying members was action taken against the members of the NUM as members, but clearly affected them individually. In that context Nicholls LJ said at page 658: "Against that background it seems to me that the expression 'as an individual' in what is now section 23 of the Act of 1978 was intended to preclude adverse action taken against a union being treated ipso facto, on the reasoning adopted in the Crouch case, as action taken against the employee. Adverse action taken against a union is not, by reason only of any consequential effect it may have on members or officers of the union, to be treated as action against individual employees. But an employee's pay comes to him as an individual employee and not as a member of a union, even if its amount may be affected by negotiations between his union and his employer. Indeed, I find it difficult to think of an action, short of dismissal, which could be taken by an employer against an employee which could more obviously qualify as action taken against him as an individual than a reduction in, or a failure to increase, his pay." Nicholls LJ was talking of adverse action taken against a union not being treated ipso facto as action taken against the employee . It seems to me that one cannot construe the words "as an individual" in isolation. I think there are seven words that need to be looked at, not just three. One must read them in their context. The context is of some "action" which is "taken against him as an individual". Looking at the matter broadly, and reminding myself that we are dealing only with a preliminary issue, the action may not have been taken (it is not necessary to say "was taken") in the context of a collective bargaining dispute between union and management even though the action to derecognise has to be brought through the union, and, to the extent it was opposed, even against the union. In essence it was an individual attack on an individual Shop Steward. To say that the true context of the dispute is collective as opposed to an individual is to be made the very submission made by the Coal Board in National Coal Board v Ridgeway , as was recorded by Nicholls LJ at page 657C, but which was rejected by Nicholls LJ. That seems to me fatally to undermine the whole basis of Mr Bowers' submissions. I come to the conclusion that the ordinary language of the section from which, as Bingham LJ reminded us, it would be dangerous to stray, compels the conclusion that the actions to derecognise Mr McCoid may have been (for I would not wish to say more) an action against him as an individual. Whether it was done for a proper purpose or improper purpose remains to be seen. I think it a real pity that the tribunal did not grapple with the facts and deal with the matter without resorting to this preliminary issue. In the result, whilst I have felt uneasy that I have not applied a test which does seem to be set out by the majority in National Coal Board v Ridgeway , I have overcome my hesitation and I, too, feel able to agree that the appeal should be dismissed. Order: Appeal dismissed with costs. Matter to be remitted back to the Tribunal. (Does not form part of approved judgment) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII