MR, JUSTICE PHILLIPS delivered the following judgment of the court. These are appeals "by William Joseph Thompson and others against the decision of an industrial tribunal sitting at Manchester on the 24th of June, 1975? which refused their applications for compensation for unfair dismissal. At the hearing before the tribunal the case of Mr. Thompson was by consent of all the parties treated as a test case. Similar considerations apply in the case of each of the appellants, and all the appeals have been argued before us together.
The appellants were dismissed on the 5th of March, 1975, the immediate occasion of their dismissal being their refusal to return to their normal places of work. They had left their places of work and were standing around a newly installed "Montfort" machine, which had been recently acquired. The management was intending to start the proving operation of that machine. The appellants' purpose in gathering around it was to prevent this from taking place. Their conduct was described by the tribunal as amounting to harassment. However, there is no doubt that there were faults on the side of the management, and the tribunal found that had the management acted somewhat differently at an earlier stage in the trouble the dispute might well have been settled. It was no doubt for this reason that the tribunal concluded that, if the case fell to be determined in accordance with the provisions of paragraph 6(8) of the First Schedule to the Trade Union and Labour Relations Act, 1974, they would not have found that the employers acted reasonably in treating the conduct of the appellants as being a sufficient reason for dismissal in all the circumstances of the case. But in the result the tribunal found that it was obliged by the provisions of paragraph of the First Schedule to hold that the dismissals were not unfair, paragraph 8 provides as follows:
"8.-(1) The provisions of this paragraph shall have effect in relation to an employee who claims that he has been unfairly dismissed by his employer, where on the date of dismissal he was taking part in a strike or other industrial action.
(2) If the reason or principal reason for the dismissal was that the employee took part in the strike or other industrial action, the dismissal shall not be regarded as unfair unless it is shown -
(a) that one or more employees of the same employer (in this paragraph referred to as 'the original employer'), who also took part in that action, were not dismissed for taking part in it, or
(b) that one or more such employees, who were dismissed for taking part in it, were offered re-engagement on the termination of the industrial action and that the employee was not offered such re-engagement,
and that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal or not offered re-engagement was an inadmissible reason."
It is necessary to say something about the background of this dispute and the events leading up to the dismissal on the 5th March, 1975. There are some points in the history of the matter upon which the decision of the tribunal and the notes of evidence leave us in doubt and uncertain ac to what precisely happened, but we do not think that it would be right at this stage to send the appeal back to the tribunal for elucidation,
All the difficulties arose out of the introduction by the management of the "Montfort" machines. The first batch of these machines was introduced in 1971, but the evidence does not disclose what arrangements were made for the proving of the machines or for the training of the men to operate them. At a later date - 18th September, 1973 - a short agreement (which has been referred to as the "Training Agreement") was made in relation to the "Pidofat" machines. This provided for a period of tip to four weeks' training during which time the operator would be paid his average earnings over the previous four weeks. That agreement, however, did not in terms apply to the "Montforts". A pair of "Montforts" was due I to Toe installed in September 1974 and there was difficulty about proving and testing them. The management wished the proving to be done by a demonstrator from the suppliers, assisted by a planning engineer from the company. This was not acceptable to the men, and a compromise was eventually reached whereby a Mr. Lindfield, a setter-operator, was put to work on the machines and to assist in the setting-up with the demonstrator and the planning engineer, neither then nor at any other time was any express agreement reached between the management and the men about the circumstances in which any other "Montfort" machine would be installed, proved or operated.
In March 1975 two more "Montforts" were ready for setting up and running in. It was out of this that the problem arose. Apparently the management did nothing about securing the agreement and co-operation of the men until about the 4th March. According to the management, Mr. x'nompson was ready and willing to operate the machine on a basis similar to that upon which the machines had been proved in September 1974, that is to say, with the demonstrator and the planning engineer. But, after discussions with the men involved (that is, those who worked in Area B) he made it clear that he was not prepared to do so. The bone of contention seems to have been the presence of the planning engineer.
There was in force an agreement [p.26] for the avoidance of disputes. One of the complaints of the appellants before the tribunal was that the management had refused to put the dispute into procedure. There is no doubt that a dispute was coming into existence on the 4th March. Whether technically the management was at fault in this respect depends in part on whether there was an existing agreement or an established practice about the proving of the "Montforts" within section (3)(a) of the domestic Procedure Agreement for the Avoidance of Disputes. If there was an established practice, namely, that which had been followed in September 1974, the management was entitled to go ahead and the men should have sought consultation without the operation being brought to a standstill. If there was not an existing agreement or an established practice, then, in view of the mens' objection made clear on the 4th March, the management should have sought to reach an agreement or have exhausted the procedure before implementing the decision to prove the "Montfort" in the manner intended. But, in that event, the men were technically at fault, too, because they took their action to prevent the management from proving the "Monfort" as intended before making any request to go into procedure. It is not possible upon the material available to the appeal tribunal, or to the industrial tribunal, to reach a wholly decisive view as to who was technically at fault. However, there seems to be no doubt that, at best, the management's approach was obtuse. We do not know enough of the background to express a detailed view, but it seems clear that after September 1974 there was no definite system agreed with the men for the installation of the "Montforts", and it was, to say the least, unwise to leave the matter until the eve of their installation before raising the question with them. On the 4th March the management was aware of the resistance of the men to the course proposed. It seems likely that, had a proper discussion taken place otherwise than under the imminent intention of the management to carry out the installation of the "Montforts", there would have been a happier outcome. No doubt it is for this reason that the tribunal found that had the matter fallen to be decided in accordance with the provisions of paragraph 6(8) they would have found in favour of the appellants.
There is no need to recount in detail the course which events took on the 5th March. The men, seeing that the proving was to commence in the manner to which they objected, left their places of work in Area B and surrounded the "Montforts" so as to prevent the management from proceeding with their plans. The management was prepared to deal with the situation and had made plans upon the basis of the domestic Disciplinary Procedure Agreement (Appendix C, page 24) and issued a series of warnings at intervals as to the consequences which would flow from the continued refusal of the men to obey the instructions which had been given to return to their normal places of work. These warnings being disregarded they were dismissed. The tribunal was of the opinion that it would have been fairer and more in accordance with the practice of one shop for the management to have used the Procedure for the Avoidance of Disputes.
The answer to these cases does not depend upon the merits of the appellants' claims, but upon whether the circumstances of these cases fall within paragraph 8 of the First Schedule. If they do, the appellants' claims must fail. If they do not, the appellants' claims must succeed. The language of paragraph 8 is simple and its meaning plain. The tribunal thought so, too, and in paragraph 10 of the decision said;
"The tribunal, whilst having a good deal of sympathy with the applicants and feeling that there is some degree of responsibility on management here, for not exactly having created this situation hut for not having seen the "better way out of it, feels that on a plain straightforward interpretation of this paragraph 8 that what was happening here was that there was dismissal because the applicants were taking part in other industrial action".
The tribunal was not happy with the result which would follow from the view thus expressed, and proceeded in the decision to consider the question in greater detail; but at the end of that consideration was reluctant to come to a different view. Jts reluctance was founded on the conclusion that the management had not behaved very sensibly, and, perhaps, that the situation in the present case was not one with which paragraph 8 was designed to deal. We have shared this reluctance for similar reasons. We are particularly concerned whether the decision in this case in favour of the employers, if upheld, could lead to the consequence that employees could be dismissed by an employer with impunity in circumstances where the strike or other industrial action has been provoked, or possibly engineered, by the employers. We shall return to this later.
At first sight it seems strange to find such a provision as this, so favourable to the employer, in an Act which otherwise is almost wholly favourable to the employee. The statutory predecessor of paragraph 8 is Section 26 of the Industrial Relations Act, 1971, the ideology and policy of which is different from the Act of 1974. Thus the provisions of paragraph 8 have found themselves in two different Acts of totally different, and opposed, complexions. In these circumstances we do not find it possible to derive much assistance concerning the purpose of these provisions from the other provisions amongst which they are to be found. The idea, which occurred to us, that the provisions of Section 26 of the Act of 1971 were allowed to creep into the Act of 1974 per incuriam, must he wrong, for the Employment Protection Act, 1975 (by paragraph 13 of Part III of the 16th Schedule) preserves the effect of paragraph 8, albeit with some amendments which do not affect its basic meaning. In Heath and Another - v - J.P. Longman (Meat Salesman) Limited [1973] LCR 407, Sir Hugh Griffiths, delivering the judgment of the court, said;
"It appears to this Court that the manifest overall purpose of Section 26 is to give a measure of protection to an employer if his business is faced with ruin by a strike. It enables him in those circumstances, if he cannot carry on the business without a labour force, to dismiss the labour force on strike; to take on another labour force without the stigma of its being an unfair dismissal. That being the overall purpose it would appear to be manifestly wrong, when an employer has beer told that strike action has been called off, that he should nevertheless still be free to dismiss those who took part in the strike, without any risk of a finding that he was acting unfairly. This is a result which the members of this Court would be anxious to avoid, unless the language of the Section drove them to it."
Mr. Pardoe, for the respondent employers, criticises this statement of the purpose of paragraph 8. He suggests that the character of the Act of 1974 is that it prevents legal recourse by anyone in respect of matters connected with a trade dispute -. a situation which he describes as being one of collective "laissez-faire ." The provisions of paragraph 8 are, he says, in the nature of a quid pro quo for the removal from the employers of any rights against an employee in respect of matters occurring during a trade dispute. The policy of the Act is to withdraw the law from the whole area of industrial disputes. So, once a strike has started, the employee is excluded from the newly created right not to be unfairly dismissed and put into a position similar to that in which he would be at common law, namely, that he would be liable to be dismissed for breach of contract. There is, says Mr. Pardoe, a close analogy with the policy whereby a man on strike is not entitled to Social Security Benefit.
It is difficult to reach any concluded view about the purpose of these provisions, particularly since (as has already been pointed out) they find themselves in two such different Acts. But, on reflection, it is perhaps not so surprising that the Act should exclude from entitlement to compensation for unfair dismissal men who were on strike at the date of dismissal, and who were dismissed for that reason - for, otherwise, an employer must always submit to the demands of the strikers, go out of business or pay compensation for unfair dismissal. Furthermore, the problem seldom arises in practice, for it is the common expectation of employers and employees that one day a strike will end and the men return to their work.
Turning to the words of paragraph 8, two questions arise;
i) Were the appellants at the time of their dismissal taking part m a strike or other industrial action?- and, if so,
ii) Was the reason or principal reason for the dismissal of the appellants that they took part in the strike or other industrial action?
We have no doubt that the action upon which the appellants were engaged was, probably, a "strike" and, if not a "strike" was certainly "another industrial action." There is no doubt that the appellants were collectively engaged in refusing to work and in physically preventing the employers from proceeding to prove the "Montforts". There was, therefore, an element of picketing in addition to the collective withdrawal of labour. It did not last very long, and there were other circumstances which make it out of the ordinary. However, the tribunal considered all these matters, and in paragraph 12 of the Decision came to a clear and reasonable conclusion that despite these matters there was here, at least, "other industrial action." We agree.
The argument presented to us on behalf of the appellants was on these lines: an essential element in a strike or other industrial action is the element of coercion on the part of those engaged in it; they must be attempting to coerce the employers; there is a difference between resisting coercion by the employers and initiating coercion themselves; so, it is not industrial action for employees to resist an unlawful coercive action on the part of the employers. The reality here, says Mr. Roberts for the appellants, is that these employers had unreasonably decided to press ahead with their plan to prove the "Montforts" that afternoon. The tribunal found that they ought to have put it off until there had been proper consultation under the agreement. Consequently, so the argument goes, the employers adopted a coercive attitude by applying the disciplinary procedure. The employees were doing no more than to stand fast against coercive action. That is not taking industrial action, he says.
In our judgment this is tantamount to saying that the provisions of paragraph 8 do not apply to a case where the employer is wholly or substantially to blame for the occurrence of the strike or other industrial action. There is no warrant for this proposition in the words of paragraph 8. Furthermore, it would introduce a test for the applicability of paragraph 8 which it would be impossible to apply in practice. It is very rare for strikes, or other industrial action, to be wholly the fault of one side or the other. Almost always there is some blame on each side. There remains the case where a strike or other industrial action has been provoked, or even engineered, by the employer in some gross manner. It seems to us very probable that in such circumstances the provisions of paragraph 8 would not apply, and that, accordingly, the difficulties and injustices which Mr. Roberts forecasts, if this appeal is dismissed, would not arise in practice. Where an employer has been guilty of such gross conduct it will probably amount to a repudiation by him of the contract of employment. If a repudiation of the contract of employment does not have to be accepted (c.f. Sanders - v - Ernest Neale Ltd [1974] ICR 565) a subsequent strike will occur after the dismissal, so that paragraph 8 will not apply. Furthermore, in a case of gross provocation, or an engineered strike, the participation of the claimants would not be reason, or the principal reason, for the dismissal. The reason would be the desire of the employers to be rid of the employees, which had led them to provoke or to engineer the strike.
The second question is more difficult. It is true that the tribunal, though (as -we think) they decided it against the appellants, did not spell out its reasons for so doing . The argument for the appellants was that the real factor leading to the dismissal of the appellants was their unwillingness to knuckle under to the wishes of the employers and allow the planning engineer to participate in the proving. Reliance is placed on the decision of an industrial tribunal sitting in Scotland in the case of Lomax – v - Ladbroke Racing Limited [1975] I.R.L.R. 363. In our judgment the real basis of that decision was the failure of the employers to discharge the onus which lay upon them of establishing what was the reason for the dismissal, with the consequence that the tribunal was unable to conclude that the principal reason for dismissal was that the applicant had taken part in a strike. In so far as that decision is based on the conclusion that the real reason for the dismissal was that the employees were seeking union recognition, it seems to us to be open to question. The strike itself, in part at least, was over the question of union recognition. If employees are seeking union recognition and are dismissed for that reason at a time when they are on strike for the purpose of seeking union recognition, it seems difficult to say that the principal reason for the dismissal was not that the employees had taken part in the strike. Mr. Pardoe submits that here the question is easily answered by saying that it is obvious that, but for the fact that the appellants took part in the strike or other industrial action, they would not have been dismissed.
In our judgment, neither of these ways of looking at the problem is satisfactory. There is no doubt here that the basic quarrel was about the manner in which the "Montforts" were to be proved. There were faults on both sides. The management should have foreseen difficulties long before the 4th March; and on the 4th March, when the difficulties were looming, it would have been sensible for them to have consulted with the men's representatives. The men, on the 5th March, even if they were right about the question of putting the dispute into procedure, took action first and only afterwards asked for this to be done. Even assuming that the greater fault was that of the employers, there is no evidence here which would support a conclusion that the dispute had been deliberately set up in order to justify dismissal for some reason not connected with the matter in dispute. The only possible view on the evidence seems to be that each side was determined to have its own way on this question, that the men took industrial action and that the employers dismissed them because of what they were doing. What they were doing was two things; first, to refuse to work, and secondly, to prevent physically the employers from proceeding to prove the machine. In other words, the industrial action was connected with, and only with, the prevention of the employers' plans. The employers dismissed the men because they were preventing their plans from being put into operation and persisting in that course after repeated warnings. In our judgment, the conclusion is inescapable that the reason for the dismissal was that the appellants took part in the strike or other industrial action.
Some reliance has been placed upon the form of application by thp appellants to the industrial tribunal. We do not think that it would be right to pay too much attention to the way in which documents such as these are phrased. However, it is right to say that they are certainly not inconsistent with the conclusion which we have reached.
We have considered whether it makes any difference to this conclusion that the employers, in the course of the dispute, used the domestic Disciplinary Procedure Agreement, and whether it can be said that, because they used this Agreement and not the Agreement for the Avoidance of Disputes, they regarded this as a disciplinary matter and therefore did not dismiss the appellants because they took part in the strike or other industrial action. In our judgment it makes no difference. The reason they were proposing to dismiss the appellants was because the appellants were preventing them from proceeding to prove the machines. That is what the strike or other industrial action was about. It is because the men were adopting that course of action that the employers desired to dismiss them, and in our judgment it makes no difference that in putting the intention to dismiss into practice, and giving successive warnings, they adopted the Disciplinary Procedure.
For these reasons the appeals must be dismissed, and, it being agreed that whoever wins shall have the cost of the appeals, the Order is that the appeals be dismissed with costs.
P. A. Haswell. 9 Strickland Close, Leeds, LS17 8JY VERBATIM REPORTER AND TAPE TRANSCRIBER
