Law Report: Circumstances of workers' dismissal were relevant: TNT Express (UK) Ltd v Rigby and others - Employment Appeal Tribunal (Mr Justice Wood, Miss J W Collerson and Mr D G Davies) 24 July 1993

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Where an employee claimed to have been unfairly dismissed for engaging in 'industrial action', within the meaning of section 62 of the Employment Protection (Consolidation) Act 1978, because dismissal was selective or discriminatory, then an industrial tribunal was entitled to examine the circumstances of dismissal when considering any reduction in compensation, pursuant to sections 73(7B) or 74(1) or (6).

The Employment Appeal Tribunal allowed an appeal by TNT Express (UK) Ltd against an industrial tribunal's award of compensation to 11 employees for unfair dismissal following industrial action at the company's Cannock depot.

Patrick Elias QC and Paul Goulding (Taylor Joynson Garrett) for the company; Alan Rawley QC and Kevin O'Donovan (Jennings Perks & Breakwell, Aldridge) for the employees.

MR JUSTICE WOOD said that in Courtaulds Northern Spinning Ltd v Moosa (1984) ICR 218, the appeal tribunal, following a concession by both counsel that Parliament's intention in section 62 of the 1978 Act had been to prevent industrial tribunals going into the merits or demerits of collective industrial disputes, decided that section 62 therefore excluded tribunals from considering whether an employer acted reasonably in dismissing an employee engaged in industrial action, and if so, whether it would be just and equitable to reduce the compensation awarded. The question was whether that decision should still be followed.

Section 62 provided: '(1) The provisions of this section shall have effect in relation to an employee (the complainant) who claims that he had been unfairly dismissed by his employer where at the date of his dismissal . . . (b) the complainant was taking part in a strike or other industrial action. (2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown (a) that one or more relevant employees of the same employer have not been dismissed, or (b) that any such employee has (within three months) been offered re-engagement and that the complainant has not been offered re-engagement.'

In this case, all the employees taking part in industrial action were dismissed. But shortly thereafter, a number were re-engaged, even though the company was advised that it could face unfair dismissal claims under section 62 from anyone not re-engaged, as indeed occurred. In the present claims, the company conceded that the dismissal, by virtue of section 62, had been unfair. The question was whether, in awarding compensation, the tribunal could take into account the circumstances of dismissal.

In Power Packing Casemakers Ltd v Faust (1983) ICR 292 at 302, the Court of Appeal gave guidance on the purpose of section 62: 'Once it was established that the employee was, at the date of his dismissal, engaged in a strike or other industrial action, the industrial tribunal could only enter upon a consideration of the merits of the claim if it could be shown that the employee had been subjected to discriminatory treatment in the matter of dismissal or re-engagement.'

Thus section 62 went to jurisdiction. The words used were 'shall not determine'. If, through voluntary or involuntary 'discrimination', which could be for sound reasons in individual cases, an industrial tribunal was given jurisdiction, then it must carry out its statutory function and seek to do what was fair, just and reasonable between the parties. All the surrounding circumstances should be examined as in any other case. The concession upon which the Courtaulds decision rested was unsound.