Gosling v The Ford Motor Co Ltd [1992] UKEAT 221_90_2906

EAT
Gosling v The Ford Motor Co Ltd
[1992] UKEAT 221_90_2906 · 1992-06-29
MR JUSTICE KNOX: Mr Gosling appeals from the decision of the London (North) Industrial Tribunal which sat on 11 days spread between the 24th November 1989 and 9th February 1990 and held that Mr Gosling was dismissed by the Respondents, the Ford Motor Company Limited for a reason relating to conduct, that the dismissal was unfair, that Mr Gosling was guilty of contributory fault, and that it would not be just and equitable to order re-instatement or re-engagement. The majority decided that by reason of the Applicant's contributory fault any compensation should be reduced by 75%. The reduction arose, so far as the argument before us went, in relation to the compensatory award, no separate argument was addressed to us in relation to the basic award, for which there is similar but not identical provision for reduction in Section 73(7) of the Employment Protection (Consolidation) Act 1978. The operative subsection in relation to the compensatory award is Section 74(6) which reads:
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
The expression which I have quoted from the decision of the Industrial Tribunal, "contributory fault" is a familiar shorthand for the circumstances described in Section 74(6).The issues which arise on this appeal concentrate on that finding of 75% reduction in respect of the compensatory award.The basic facts are stated very shortly and succinctly in the Industrial Tribunal decision, although as the number of days hearing indicates, they were the subject of much dispute before that Tribunal.Mr Gosling was a long time employee, having been employed close on 10 years and 2 months, when he was dismissed initially by a letter of the 28th November 1988 but subsequently as a result of suspension during his appeal on the 2nd February 1989 which is when his employment ultimately ceased.Mr Gosling's principal case was dismissed on the facts, namely that he was the victim of a conspiracy to dismiss him for his activities otherwise than on the shop floor in that he asserted, far from denying, that he was the Chairman of, what the Industrial Tribunal calls, a notoriously active union branch. His case that his dismissal was because of that, rather than what happened inside the Assembly Line at Dagenham, which was where he worked, was rejected by the Industrial Tribunal on the facts. They found that his dismissal was attributable to his conduct, and that the conduct in question was his actions on the shop floor, and they rejected the submission that they were either activities of an independent trade union, or trade union activities generally. He had no official status on the shop floor although he had the position outside the factory which I have mentioned.The specific allegations that were made of misconduct contained at least one irrelevance which we need not go into. That was concerned with the way in which he filled up his application for employment. But that was not the subject of argument before us and we ignore that. There were three incidents which had code names; the "tea box" incident which occurred, it was said, on the 1st July 1988; the "lighting" incident which occurred on the 2nd September 1988 and the "chassis stamping" incident on the 16th November 1988. What the Industrial Tribunal said about those three incidents was this:
"10. Tea Box. This incident arose out of a search of an operative's tea box by a member of management looking for drugs the previous evening. The search incensed those present and resulted in an unofficial stoppage of the line. The next morning Mr Body [he was the Area Manager for the Trim and Final Assembly at Dagenham] himself alleged that he heard and saw the applicant actively encouraging a continuation of the stoppage. In particular, he heard the applicant say `If this track runs, they (i.e. the management) have won.' The applicant totally denied using any such words. In the end, the issue was whether the applicant or Mr Body was telling the truth."
As regards the "Lighting" incident the Industrial Tribunal said this:
"11. Lighting . Some overhead lighting had been brought down by an open car tailgate and two men were injured. It was alleged that thereafter the applicant spoke for a group which was `milking' the situation and refusing to work on a different part of the line. It was said he was being obstructive to union efforts to secure a return to work. The evidence was that of another member of management, Mr Paton."
Upon the third, and last, the "Chassis stamping" incident, this is what the Industrial Tribunal said:
"12. Chassis stamping. This time the evidence took the form of a written statement from Mr Walker, Personnel Manager, Dagenham Operations. Chassis stamping was an unpopular operation which caused some discomfort to the operatives and there was an unconstitutional stoppage of work connected with it. Mr Walker and Mr Body walked the length of the line and explained that the line would be remanned; some operatives asked for and received guarantees that there would be no victimisation if they remained at work. Mr Walker saw the applicant talking animatedly to some of the operatives and passed a message to him that if he was not working he should leave. Shortly afterwards he heard the applicant say, in an apparently aggressive manner that if the job were remanned there would be `trouble tomorrow'. He rebuked the applicant, who slowly moved off the line addressing other people as he left. The following day, according to a note from Ms Cavalier (Senior Employee Relations Officer) the applicant was seen to be taking an obstructive attitude to the management-union decision to reman."
It will be observed in passing that in each of those three sets of findings there is in greater or lesser extent an indication of Mr Gosling's having taken a line which was not only at odds with the management line but also, in some degree, at odds with the union line. In the "tea box" incident there is a reference to an unofficial stoppage; in the "lighting" incident a reference to obstruction to union efforts to secure a return to work; in the "chassis stamping" incident a reference to an obstructive attitude to the management-union decision to reman.The Industrial Tribunal then turned to the question of the reasonableness of the decision to dismiss. It found that in relation to the three acts of misconduct allegedly committed by the Applicant, that is to say, of course the "tea box", "lighting" and "chassis stamping" incidents, it could not say that dismissal was outside the range of responses open to a reasonable management in the circumstances, and their finding of fact was that they amounted to an apparent pattern of disruptive behaviour on the shop floor which could not be tolerated. They went on to find that there was unfairness in relation to the first two, chronologically speaking, of the incidents in that there had been undue delay, and their conclusion on that score was:
"If the applicant's [Mr Gosling's] conduct in July or September merited disciplinary action at the time (and they did), then disciplinary action should have been taken at the time. We find that the way in which the respondent proceeded was unreasonable within the meaning of section 57(3) as being contrary to equity. The dismissal was accordingly unfair."
That brings us to the area of this appeal, namely, the findings of contributory fault. The Industrial Tribunal referred to the argument that was addressed today to us by Mr Bloomfield which was primarily based on the decision in Courtaulds Northern Spinning v. Moosa [1984] ICR 218. The Industrial Tribunal then went on to say:
"This case is authority for the proposition that participation in industrial action cannot amount to contributory fault; tribunals are not permitted to decide on the merits of such action and are not therefore in a position to decide whether or not it is just and equitable to make a deduction. Mr Griffiths-Jones [who appeared for the employer Company both below and here] replied that the respondent was not relying on the applicant's participation in industrial action but on his behaviour in deliberately inciting such action. He also cited other factors relied on as constituting contribution. Mr Bloomfield answered that no distinction could be made between participation and incitement."
On those arguments which bear a strong resemblance, if they are not identical, to what was argued before us, the Industrial Tribunal's finding, so far as unanimous, was that on the balance of probabilities Mr Gosling was in fact guilty of the offences alleged against him. Taken together they amounted to unjustifiable incitement regardless of the merits of the individual disputes and they unanimously found that they amounted to contributory fault. It was at this point that the majority parted company with the minority. The majority found that Mr Gosling also contributed to his dismissal by declining to sign a document that has been referred to throughout as the "lifeline" which we were shown and which consisted of a draft statement for him to sign to the effect that he accepted the conditions of his employment and his intention to abide by them.He was also asked to reaffirm that he understood that those conditions included observance of the grievance procedure agreed between the Company and trade unions and a recent memorandum that had similarly been entered into. It also required him to say that he did not condone unconstitutional action and that he recognised that it had the effect of unnecessarily losing employees' pay and the Company production and thereby, revenue. Then came the final paragraph which was what, primarily, he objected to signing, and that read as follows and is quoted verbatim in the Industrial Tribunal's decision:
"I understand that the Company has given me a Final Warning, and that if I am involved in any future unconstitutional action or in encouraging other employees to take or continue to take such action, or if I am involved in any other breach of my Conditions of Employment, I will render myself liable to dismissal."
This he declined to sign and the majority of the Industrial Tribunal said of that:
"In refusing to sign this document he made it clear that he would continue to be involved in unconstitutional action if he felt so inclined. His general attitude was underlined in his evidence to the Tribunal that his involvement or otherwise would depend on whether he felt the management had behaved properly."
Taking all those factors into account they found that figure that I have mentioned 75%.The minority member differed on the "lifeline" and Mr Gosling's declining to sign it. He took effectively two points, saying first of all:
"He [the minority member] feels strongly that if matters had proceeded through the normal progressive disciplinary procedure, the applicant would have seen the error of his ways and there would have been no dismissal."
Pausing there for a moment that, as we understand it, is a causation problem, namely that if the "lifeline" had been signed there would have been no dismissal. That particular line of argument was not pursued before us. What was pursued before us was the second point. This was that the Applicant was justified in refusing the "lifeline" and in seeking, as he did, to secure a better bargain from the Respondent. In the circumstances, he, the minority member would have limited the contribution to 50%.The argument in favour of the appeal proceeded principally on the strength of the decision in the Moosa case supra. That was a case which was on any view within Section 62 of the Employment Protection (Consolidation) Act 1978. The facts were that the Applicant and some other employees took industrial action which consisted among other things of a refusal to work through their meal breaks. Working through meal breaks was not one of the matters which was the subject matter of the dispute, the refusal to work through meal breaks was simply part of the industrial action taken by the employees. The Industrial Tribunal held that there was a contractual obligation on the employees to work through their meal breaks. The industrial action therefore involved a breach of contract by the Applicant and the other employees. The Industrial Tribunal found that the Applicant and the other employees were dismissed by the employers when they were on strike and because they were on strike. That of course put the case fairly and squarely within Section 62, subsection (1) of which reads:
"The provisions of this section shall have effect in relation to an employee (the `complainant') who claims that he has been unfairly dismissed by his employer where at the date of dismissal - (a)the employer was conducting or instituting a lock-out, or (b)the complainant was taking part in a strike or other industrial action."
We obviously are only concerned with (b) in this case. The operative provision in Section 62 is in subsection (2) which reads:
"In such a case [that is to say in the case that falls within (1)] 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, before the expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement]."
They are of course cases where there has been differential treatment as between the complainant on the one hand, and other persons engaged in the industrial action on the other hand. It is to be noted that in the Moosa case the action in question was the taking part in the strike itself. There was no question of how closely it was bound up with it, it was actually the action that constituted the strike or part of it.In the Moosa decision Mr Justice Browne-Wilkinson described the questions that arose on the issue of contributory fault as consisting of two points, only the second of which is involved in our decision, but the way in which he described the second point was this (ICR 222 at G):
"can an industrial tribunal take into account in considering contributory fault breaches of contract which are part and parcel of the industrial action?"
and Mr Bloomfield placed strong reliance on that turn of phrase "part and parcel" of the industrial action, his submission being that what the Industrial Tribunal found that Mr Gosling in this case had done, could only properly be treated as "part and parcel" of the industrial action that was then taking place.In Mr Justice Browne-Wilkinson's judgment that second question is addressed at page 224 in a passage which merits quotation in full. It reads as follows:
"The second question is whether, in applying section 74(6) to a case where an employee has been dismissed while taking part in industrial action, the taking of such industrial action itself can ever be characterised as contributory fault meriting a reduction in the amount of compensation. It has always been accepted that the general intention of Parliament lying behind section 62 of the Act is to prevent industrial tribunals from going into the merits or demerits of collective industrial disputes. Both counsel accept this to be the position. The detailed way in which Parliament sought to achieve this result is not entirely clear to us: however the general principle is well established.
Strikes and other industrial action normally (although not invariably) involve the employees who are taking part in it in breaches of their contracts of employment. For example, the ordinary strike involves a breach of contract. So, in the present case, the industrial action taken by the applicant and his fellow employees involved a breach of their contracts although the dispute between the employees and the employers was not about the term which they breached. If an industrial tribunal is entitled under section 74(6) to reduce the compensation because of industrial action which constitutes a breach of contract, it will have to enter precisely the arena from which Parliament, in general, desired to exclude it.In Nelson v. British Broadcasting Corporation (No.2) [1980] ICR 1100, the Court of Appeal laid down that in order to justify a reduction in compensation under section 74(6) three things have to be established; first, blameworthy conduct by the employee; secondly, that such conduct contributed to or caused the dismissal; thirdly, that it is just and equitable to reduce the compensation by a given amount. It is possible to suppose that Parliament might have regarded industrial action involving a breach of contract as blameworthy conduct, although we venture to think this very improbable. But we find it impossible to accept that Parliament, in conferring the right to reduce compensation, can ever have intended an industrial tribunal to form a view as to the merits or demerits of any particular industrial action. Without forming such a view it would be impossible for an industrial tribunal to determine the proportion, if any by which it was just and equitable to reduce the compensation.Industrial disputes are often very complex, having a long history and involving many contributory factors. In no area of English law of which we are aware are courts ever entrusted with the determination and allocation of blame in relation to industrial disputes. Section 62 of the Act of 1978 excludes industrial tribunals from considering whether an employer acted reasonably in dismissing an employee engaged in industrial action. It would be strange indeed if Parliament had intended that the industrial tribunal should consider what is effectively the same point when coming to consider the blameworthiness of the employee's conduct.We therefore reach the conclusion that it is not possible for an industrial tribunal to hold under section 74(6) that the industrial action in which the employee was taking part (whether or not it was in breach of contract) in itself justified a reduction in compensation, since an industrial tribunal is unable to determine whether or not, and to what extent, it is just and equitable to make such reduction.This does not exclude the possibility that there may be conduct other than the industrial action itself which could justify a reduction under section 74(6). Say, for example, that an employee who was on strike had in fact been dismissed for reasons other than that he was taking part in the strike. If the industrial tribunal came to the conclusion that such dismissal was even so unfair, it might well take the view that the employee's conduct which had caused his dismissal (as opposed to the industrial action itself) merited a reduction under section 74(6)."The principal submission that was made in support of the appeal was that contributory fault should not be found in relation to industrial action since that involves an industrial tribunal going into the merits or the demerits of the industrial action. That was the way it was put. It would, in our view, be somewhat more consonant with what was principally said in Moosa , although both phrases were used, to refer to industrial disputes rather than industrial action. It seems to us that the logic of the judgment of the Employment Appeal Tribunal in Moosa was directed at the undesirability of the Industrial Tribunal seeking to enter into an investigation of the merits and demerits of the dispute rather than the individual item of action.Subject to that, however, the main contention before us was whether, as Mr Bloomfield argued, the incitement that was found in the Industrial Tribunal's decision, could consistently with the principle that he discerned in Moosa , be treated on any different footing from what was regarded in the Moosa decision as impermissible territory for the industrial tribunal, namely participation in industrial action.We are not convinced that there is not a difference in fact between incitement to industrial action on the one hand and participation in industrial action on the other. Whether there is factually such a distinction in any given case must be a matter for analysis by the industrial tribunal itself, but we are unconvinced that as a matter of law there cannot be a difference between those two actions, and assuming, for present purposes, that the Moosa decision lays down a principle that an industrial tribunal cannot investigate the question of participation in industrial action, that does not in our view, as a matter of law, prevent an industrial tribunal, in appropriate circumstances, from distinguishing from that field a case where what has happened is incitement to industrial action. If that is right then the issue on this appeal is ultimately a question for the judgment of the Industrial Tribunal as a matter of fact whether or not there was such a distinction, and there was no suggestion of course that we have any jurisdiction to interfere with questions of fact. That is a matter for the Industrial Tribunal.The matter does not we think end there, because in our view there is very considerable force in the distinction that was drawn by Mr Griffiths-Jones between the decision in Moosa and the facts of the present case. In Moosa it was, he suggested, logical to apply the bar on the reduction of the compensatory award where the Applicant's conduct was exactly the same as that of his fellow employees who were re-engaged, so that the unfairness of the dismissal or what is treated by the Act as the equivalent of dismissal, that is to say the non-selection for re-employment, was not connected with the conduct of the Applicant. The unfairness resided in not selecting him for re-employment, and there was no direct nexus of any sort with the participation by the applicant in the relevant industrial action, so that it was entirely logical to exclude on that score both that conduct in relation to reduction of the compensatory award for contributory fault and that circumstance in considering the question of the fairness or unfairness of his dismissal in the first place. The present case, he submitted, was the converse in both respects and it was logical, he submitted in this case, where the dismissal was found substantively to be fair, although of course it was found procedurally unfair in relation to two of the three incidents in question, that in those circumstances the same treatment should logically be afforded to questions of reduction of the compensatory award for contributory fault. In both cases it would be consistent and right, in the terms of the Statute, for the Industrial Tribunal to have regard to the conduct which led to the dismissal being substantively fair, although procedurally unfair in two of the cases, and to have regard to that conduct in deciding whether or not there should be a reduction in the compensatory award.We do not consider that the answer that was given by Mr Bloomfield, as we understood it to that argument, was satisfactory. That answer, we think, was that Section 62 is effectively of universal application in relation to dismissals in the context of industrial action and it was submitted that it really was not relevant that Section 62 did not in fact apply because its non-application was as a result of an individual act of volition by the employer in staying his, or its, hand in relation to dismissal, until a time which was after the industrial action was proceeding and therefore took the case out of the strict terms of Section 62. On that footing, Mr Bloomfield submitted, that one should have regard to the general principles enshrined in Section 62 as enunciated in the Moosa decision without focusing on the narrow question whether Section 62, in terms, applied to the particular case. In our view that does not answer the point with regard to the illogicality of excluding these considerations in relation to reduction of the compensatory award, while being compelled to take them into consideration in deciding whether the dismissal was a fair or unfair one and in those circumstances we consider that the Industrial Tribunal showed no error of law in reaching the conclusion that they did on the main issue.On the subsidiary issue, the issue of the "lifeline" where there was a split between the majority and the minority, it seems to us that the same considerations must apply once one excludes any question of causation, which we do not understand to be an issue. In any event it seems clear that the refusal by Mr Gosling to sign was, as a matter of causation, perfectly clearly, one of the elements that led to his dismissal. Apart from causation it seems to us that if we are right on the main point, exactly the same considerations must apply on this point in relation to the "lifeline" in that the refusal albeit connected with the industrial action, perhaps somewhat more tenuously in this case, was nevertheless a matter upon which it was open to the Industrial Tribunal to find, as a matter of fact, that it was conduct which fell within the ambit of Section 74(6). Once there is an exclusion of the wide principles enunciated in Moosa , the exclusion applies just as much to the argument in relation to the "lifeline" as it does, in our view, in relation to the three principal incidents on which the Industrial Tribunal formed its unanimous decision.

For those reasons this appeal will be dismissed

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There has been an application for costs. The Rule that applies to these Tribunal proceedings is Rule 27 in the Employment Appeal Tribunal Rules 1980 which reads:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
The Respondents' answer, obviously drawn by someone with an eye to the Rule, included the following:
"the Notice of Appeal fails to disclose an arguable point of law and accordingly is unreasonable, unnecessary, improper and/or vexatious and should be dismissed with costs."
We do not agree that it failed to disclose an arguable point of law, the points were skilfully and exhaustively argued and we had the benefit of helpful argument from both sides. The hypothesis upon which the claim for costs is based is, in our view, a false one and on that basis we find that this case does not come within the Rule and we have no jurisdiction to award costs.