Striker's conduct to be ignored in fixing award

LAW REPORT 29 August 1995

Tracey v Crosville Wales Ltd; Court of Appeal (Lord Justice Beldam, Lord Justice Waite and Lord Justice Otton) 31 July 1995

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 [1984] ICR 218 (by which the tribunal held itself bound) and TNT Express (UK) Ltd v Downes [1994] 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

PROMOTED VIDEO
News
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £35000 per annum + negotiable: Sauce Recruitment: We have an exciting...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £32000 per annum + negotiable: Sauce Recruitment: We have an exciting...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Day In a Page

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?

A crime that reveals London's dark heart

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?
Meet 'Porridge' and 'Vampire': Chinese state TV is offering advice for citizens picking a Western moniker

Lost in translation: Western monikers

Chinese state TV is offering advice for citizens picking a Western moniker. Simon Usborne, who met a 'Porridge' and a 'Vampire' while in China, can see the problem
Handy hacks that make life easier: New book reveals how to rid your inbox of spam, protect your passwords and amplify your iPhone

Handy hacks that make life easier

New book reveals how to rid your email inbox of spam, protect your passwords and amplify your iPhone with a loo-roll
KidZania lets children try their hands at being a firefighter, doctor or factory worker for the day

KidZania: It's a small world

The new 'educational entertainment experience' in London's Shepherd's Bush will allow children to try out the jobs that are usually undertaken by adults, including firefighter, doctor or factory worker
Renée Zellweger's real crime has been to age in an industry that prizes women's youth over humanity

'Renée Zellweger's real crime was to age'

The actress's altered appearance raised eyebrows at Elle's Women in Hollywood awards on Monday
From Cinderella to The Jungle Book, Disney plans live-action remakes of animated classics

Disney plans live-action remakes of animated classics

From Cinderella to The Jungle Book, Patrick Grafton-Green wonders if they can ever recapture the old magic
Thousands of teenagers to visit battlefields of the First World War in new Government scheme

Pupils to visit First World War battlefields

A new Government scheme aims to bring the the horrors of the conflict to life over the next five years
The 10 best smartphone accessories

Make the most of your mobile: 10 best smartphone accessories

Try these add-ons for everything from secret charging to making sure you never lose your keys again
Mario Balotelli substituted at half-time against Real Madrid: Was this shirt swapping the real reason?

Liverpool v Real Madrid

Mario Balotelli substituted at half-time. Was shirt swapping the real reason?
West Indies tour of India: Hurricane set to sweep Windies into the shadows

Hurricane set to sweep Windies into the shadows

Decision to pull out of India tour leaves the WICB fighting for its existence with an off-field storm building
Indiana serial killer? Man arrested for murdering teenage prostitute confesses to six other murders - and police fear there could be many more

A new American serial killer?

Police fear man arrested for murder of teen prostitute could be responsible for killing spree dating back 20 years
Sweetie, the fake 10-year-old girl designed to catch online predators, claims her first scalp

Sting to trap paedophiles may not carry weight in UK courts

Computer image of ‘Sweetie’ represented entrapment, experts say
Fukushima nuclear crisis: Evacuees still stuck in cramped emergency housing three years on - and may never return home

Return to Fukushima – a land they will never call home again

Evacuees still stuck in cramped emergency housing three years on from nuclear disaster
Wildlife Photographer of the Year: Intimate image of resting lions claims top prize

Wildlife Photographer of the Year

Intimate image of resting lions claims top prize
Online petitions: Sign here to change the world

Want to change the world? Just sign here

The proliferation of online petitions allows us to register our protests at the touch of a button. But do they change anything?