Where all the employees taking part in a strike had been dismissed and some had then been selectively re-engaged, so as to render the dismissal of the remainder unfair under section 62 of the Employment Protection (Consolidation) Act 1978, the industrial tribunal was precluded from taking into account their conduct in taking part in the strike when deciding, under section 74(6), whether to reduce their compensation on the ground of contributory fault. Only if they were guilty of conduct, contributing to their dismissal, over and above participation in the strike, which was particularly blameworthy could such a reduction be justified.
The Court of Appeal allowed an appeal by Sharon Tracey and 72 other bus drivers formerly employed by Crosville Wales Ltd, a bus company; reversed the decision of the Employment Appeal Tribunal on 14 March 1994; and affirmed the correctness of the original industrial tribunal's view that, in assessing the compensation payable to the appellants for their unfair dismissal for taking part in industrial action, the tribunal was precluded from making any reduction in the award to reflect the appellants' conduct at the time of their dismissal.
John Bowers (Jack Thornley & Partners, Ashton under Lyne) for the employees; Jeremy McMullen QC (Wragge & Co, Birmingham) for Crosville.
Lord Justice Waite said the intention of the legislation was clearly to discourage discriminatory re-employment in the immediate aftermath of industrial action. The essence of discrimination, in such a context, was that there should be picking and choosing from people who had been engaged in the same industrial action.
In a case where A, B, C and D had all been dismissed while participating in the same collective action, and A and B alone had been re-engaged, the industrial tribunal had a three-fold duty. First it must determine whether the relevant collective action amounted to a strike or other industrial action and whether there had been any offers of re-engagement. If so, it must then decide whether C and D had been unfairly dismissed because there was no, or no sufficient, qualifying reason for the discriminatory failure to re-engage. If so, it must then determine whether C and D should be regarded as having contributed to their dismissal and if so what reduction (if any) it would be just and equitable to make in the amount of their compensation.
It seemed impossible that Parliament could have thought it just or equitable to penalise C and D, the victims of discrimination, by way of contributory fault, solely for conduct in which they had participated in common with A and B, the beneficiaries of that discrimination. What Parliament must have contemplated was that there would be instances in which C and D had been engaged at the relevant time in activities of their own which, although connected with the common action, had an identifiably distinctive impact on the decision to dismiss.
In such a case, the tribunal must examine such activities and inquire whether they should be treated as causative or contributory to the dismissal and if so whether it would be just and equitable to take them into account as justifying a reduction in compensation.
The question was: "Have these applicants been responsible, in addition to mere participation in the relevant industrial action, for any conduct of their own contributing to the dismissal which was sufficiently blameworthy to make it just and equitable to reduce their compensation?" In the present case, the tribunal was right to leave contributory fault out of account because there was no evidence (and no suggestion) that out of the total dismissed workforce the 73 applicants had been responsible for any independent conduct of their own which might qualify for separate consideration on grounds of justice or equity for the purposes of assessing contributory fault.
The Employment Appeal Tribunal, in deciding the point of principle, had been faced with two conflicting previous decisions: Courtaulds Northern Spinning Ltd v Moosa  ICR 218 (by which the tribunal held itself bound) and TNT Express (UK) Ltd v Downes  ICR 1. The appeal tribunal had chosen to follow the later case. But in his Lordship's judgment, Courtaulds was correct and TNT, on the point in issue here, was wrongly decided and should not be followed
Lord Justice Beldam and Lord Justice Otton concurred.
Paul Magrath, Barrister