Associated Newspapers Ltd v Wilson [1992] UKEAT 612_90_2603

EAT
Associated Newspapers Ltd v Wilson
[1992] UKEAT 612_90_2603 · 1992-02-20
MR JUSTICE WOOD (PRESIDENT) This case is based in a clash of philosophies and it could therefore be said to be a delicate decision, but this aspect must be ignored. As the Tribunal comment in paragraph 5 of their Decision
"Although what took place here would appear to be a simple alteration in the way in which workers' pay is arrived at it had far reaching effects upon the exercise of Trade Union rights. It is more than a little unfortunate that the present situation involves what Mr Hendy referred to as "a clash of philosophies". It is indeed a misfortune that that should be the case."
The facts are not substantially in dispute. Our duties is to apply the law as we understand it to exist. The issue on this appeal is whether after de-recognition by an employer of an employee's trade union, that employee can succeed in a personal claim under S.23(1)(a) of the Employment Protection (Consolidation) Act 1978 in connection with his membership of his trade union.Associated Newspapers Ltd (AN) own and publish under three titles, the Daily Mail, the Mail on Sunday and the Evening Standard. Since October 1977 the Applicant, Mr Wilson, has been employed by AN. He is aged 37, a fully trained and indentured journalist who works from offices in Kensington as a news sub-editor on the Daily Mail. His position is a responsible one; his salary is in excess of £33,000 per annum. Since 1973 he has been a member of the National Union of Journalists (NUJ) and in 1987 he joined the Chapel Committee of the Daily Mail. In 1988 he became joint Father of that Chapel. Prior to the circumstances forming the background to the present case, AN had recognised a number of Trade Unions and amongst them, the NUJ.By an Originating Application dated 26th April 1990 Mr Wilson claimed compensation under the provisions of Ss.23, 26 and 27 of the Employment Protection (Consolidation) Act 1978. He claimed a breach of his rights under S.23(1)(a) and (b).That section is headed " Trade union membership and activities" . Subsection 1 reads:-
" 23(1) ...every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of - (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or (b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions"
An Industrial Tribunal sitting at London (South) under the Chairmanship of Mrs Stella Hollis heard the case over some three days and found in favour of the Applicant, making a declaration that AN had contravened S.23(1)(a). AN now appeal. Mr Wilson had also alleged breaches of S.23(1)(b), S.27 and S.28. They were rejected by the Tribunal. It was stressed to us in this appeal, and it is important to note, that no reliance is placed on subsections 23(1)(b) or (c).There is no cross-appeal against any findings of the Industrial Tribunal.We were shown the Applicant's contract of employment as is required by the industrial legislation. Paragraph 2 of the conditions reads:-
"Your terms and conditions of employment relating to rates of remuneration, hours of work, holidays and holiday pay, will be in accordance with the following:- (a) The relevant national agreements currently in force at any time between the Newspaper Publishers' Association and your Trade Union where appropriate. (b) The relevant house agreements currently in force at any time. (c) Any other relevant agreements or schemes in addition to (a) and (b) above. (d) Individual record cards where applicable.

Paragraph 6 reads:-

"If you have any grievance relating to your employment, or the application of any disciplinary procedure, you should discuss this with your immediate available superior. Should the matter not be resolved at this stage then the procedure set out in the document entitled "Company Grievance Procedure" or in the appropriate House Agreement as the case may be, should be followed."
To the particulars of employment was annexed the following statement.

"The following are two points I would like to bring to your attention -

1.It is Company policy that in any Dispute/Grievance Procedure you should be accompanied by your F.O.C. or Chapel official but, I have been asked to point out that it is also the policy of your Society that you should be represented by your F.O.C. or Chapel official in any discussions of this nature with any level of management.2.If you wish to discuss anything of a personal nature with any member of management, then, of course, the provisions in para. 1 above would not necessarily apply unless you so wish."Prior to some time in 1980 some of the negotiations for pay of journalists was conducted between the NUJ and the Newspaper Publishers Association, which was a group of employers within the industry. Employees' contracts were not individually negotiated below editor level. Concurrently and in line with commercial changes employers in the newspaper industry found the need to modernise and sought changes in their industrial relations. The Employers' Association broke up.The position at the beginning of 1989 therefore was that a journalist would have his own contract of employment but that the major items in that contract were only discoverable by reference to the "House Agreement". This agreement covered all material aspects of the journalists relationship with the AN.The relevant House Agreement was dated January 1980 with a reprint of January 1984. It was made between AN and the NUJ Chapels of the group. The legal constitution of the Chapels is a little difficult to define and it is probable that they were acting as agents for the NUJ. The index to the agreement indicates that it covered most aspects of the journalists employment including amongst others, salary structures, service, hours, holidays, sickness, discipline, pensions, travel, insurance, efficiency and disputes. Paragraph 2.3 of the Agreement states:-
"The parties undertake to be bound by the provisions of this agreement, which is not legally enforceable."
and paragraph 1 provided:
"This agreement is effective from 1st June 1979. It was a continuation of an earlier agreement and shall continue thereafter subject to termination or variation by six months' notice in writing which may be given by either party at any time after the first six months."
As is usual with such agreements (S.18 of Trade Union Law Reform Act 1974) it was not legally enforceable, and it was clearly envisaged that it could be terminated.The AN undertook to encourage all journalists to join the NUJ upon taking up employment and to remain in membership. The agreement however made it clear that membership of the NUJ was not a necessary condition of employment. Save at the Daily Mail the AN assisted the NUJ in collecting union dues.Any formal complaint against a journalist had to be notified in writing by the Head of Department to the Father of chapel save that the editor had a right to dismiss instantly for gross misconduct. He would of course then notify the Father of chapel at once.There was a procedure for the resolution of disputes between the chapels and the management about the interpretation of the agreement or about any matter affecting the employment of a member of the chapels, or indeed about any situation arising from the agreement which was likely to jeopardise the production of the newspaper.It is clear, as the Tribunal found, that by no means all of the provisions of the House Agreement could be or were intended to be incorporated into the individual contracts of employment of each journalist. That is common ground between the parties before us. see - ROBERTSON v BRITISH GAS [1983] ICR 351:356F:358E. However once those terms from the House Agreement, including any pay awards and other items subsequently agreed, were incorporated into the individual contracts, then those contracts together with the terms incorporated through the House Agreement were free-standing contracts and continued to exist even though the House Agreement might itself be terminated.Early in 1989 the editors of the three titles sought to end the collective relationship between themselves and their journalists and to establish individual contracts for each journalist. An important meeting took place on 16th February 1989 attended by the three editors and also by two members of the management. It was unanimously agreed that the existing situation was unsatisfactory and that there should be a new relationship which they would seek to obtain by what were termed "Tactics". The minutes of the meeting as relevant read,

" NEW RELATIONSHIP

The Editors would prefer a formal individual relationship between themselves and each journalist. The collectivism of the current Company/Chapel arrangement should end. Individual contracts could be devised for each journalist and be accompanied by a Company Manual. The Company Manual could cover subjects which were common benefits to all journalists. Health and safety was an obvious subject to be covered and others might be service payments, (if they were to continue) and pension arrangements. The individual contracts would have common headings but would detail specific entitlements. For example salary would be a common heading but individual amounts inserted.It was agreed that there should be no area for joint negotiation by a Chapel but it was recognised that employees could remain or become members of any Trade Union if they so wished."A number of steps were considered under the heading " Tactics" and included formal termination of the House Agreement and the offering of individual contracts to journalists after the termination of that House Agreement. Timing was also considered and it was decided that recognition of the NUJ chapels would end by at least 31st March 1990. It was also envisaged that a Manual of common benefits would need to be drawn up so as to establish a common form of contract for all the group's journalists.The pay budget at that time was approximately £13m a year for the journalists on all titles. Of this figure a small sum of less than £100,000 was available for "merit awards", payable to individual journalists at the discretion of editors, and in excess of the salaries to which they were each entitled under provisions of the collectively reached agreement governing pay. The ability to distinguish on performance was thus very limited being about 3/4% of the total pay budget. Indeed these merits awards were based largely on service rather than individual ability.The subsequent events are dealt with in detail by the Industrial Tribunal in its Decision and we are grateful to them. We propose to reiterate only those dates and items which we believe essential to our reasoning.

On 27th June 1989

"... Mr Hardy announced that the respondents were reorganising their staff and no longer required "a third force" but would deal with their staff directly in the new structure. Henceforth staff would be represented by their Editors and Heads of Department. He said the respondents wanted to go in a new direction and were serving six months' notice of termination of the House Agreement on the Chapels. He said that the new Handbook would contain terms already in or implied by the House Agreement and that those who signed the new individual contracts would be given a 4 1 / 2 % pay rise back-dated to 1 October 1989 and those who did not would not receive the pay rise. He made it clear that there would be no pay talks for April 1990. The applicant questioned the extent of the "derecognition" of the Union and queried as to whether it just related to pay talks. Mr Hardy said that derecognition of the Chapel would be for all purposes. Mr Hardy insisted that those who did not sign the individual contracts would not receive the 4 1 / 2 % pay rise but that in all other respects their terms and conditions would be as they had been before and that would apply to everyone."
The Tribunal pay particular attention to a letter written by Sir David English, the Editor of the Daily Mail and Deputy Chairman of AN to the Applicant dated 10th November 1989. It read -

"Dear Dave

You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on April 1st, 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.Instead, salaries will be reviewed annually each October 1st as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.A Handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.Each member of the staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.All journalists who sign their new contracts before January 1st, 1990 will be awarded a 4.5% wage increase backdated to 1st October 1989. As I have said, the next review of salaries will be on 1st October 1990.I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.I think you should know that the initiative to end collective bargaining has come from the editors, not the management.It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.

Yours sincerely

David English"

Thereafter there were a number of Chapel meetings to which we need not refer in detail. Approximately 173 out of about 200 journalists at the Daily Mail belonged to the NUJ. It was decided that talks should be initiated with AN over the new proposals and instructions were given not to sign any individual contracts. Discussions then took place ranging over the contents of the Handbook and the individual contracts.A ballot was taken in December 1989 and there was a substantial majority in favour of industrial action. The disputes procedure under the House Agreement was invoked. On 5th December Sir David English attended a meeting with Chapel representatives. A number of matters were discussed but at that meeting he expressed the view that in two years he would prove that the trade union was unnecessary and that Chapel would wither away. During December the Handbook in its original form was made available to the Chapels. As was the draft contract of employment.In the event Chapel members were unwilling to take industrial action. By 30th January 1990, 15 members had signed individual contracts: by 1st February, 60: by 6th February, 103: on 20th February the Chapel set aside its instructions to members not to sign and by 1st April 1990 when the House Agreement came to an end all but 15 of the 173 members of the Chapel had signed individual contracts. Those 15, who include Mr Wilson, the Applicant, continued to work for the Respondents and continue to remain members of the NUJ as do others who signed individual contracts. The present membership is 138 - about 79% of the former total.The position of the 15 is that their contracts of employment continue including all the terms incorporated therein under the House Agreement.The final form of the new Handbook came into being in May 1990 and has been circulated to all the journalists.On 30th March 1990 Mr Pressey refused to conduct negotiations with the Chapel concerning the salary of those journalists who had refused to sign individual contracts of employment. He suggested that they approached the editor on an individual basis.The Tribunal referred in detail to the new position under the Handbook in its final form. They said -
"41. The Handbook in its final form (...) differs from the House Agreement in that it relates to the rights and responsibilities of the individual employees vis-a-vis the respondents. The contracts of employment refer to the Handbook which accompanied each contract. The contents of the Handbook embody the principal terms and conditions of each employee and the applicant does not seek to suggest that there has been any reduction in the terms and conditions as generally regarded in industry or in respect of those matters required by Section 1 of the Employment Protection (Consolidation) Act 1978 in relation to the terms and conditions of an employee.
42. However certain salient differences should be referred to. Paragraph 4 of the Handbook (...) is an enlargement of and to some extent a clarification of both the disciplinary and the grievance procedures as embodied previously in the terms and conditions (...) and the disciplinary procedure at paragraph 14 of the House Agreement (...) referred to above. The Handbook does not require notification of complaint against an employee to the Father of the Chapel. An employee may be accompanied by a representative including an official or officer of his or her Trade Union at a grievance meeting. At a disciplinary hearing a person may (if an individual so wishes) be accompanied by an officer or official of his or her Trade Union. The grievance procedure in the Handbook is stated to be "Intended for the raising of grievances by individuals only and will relate to all matters other than salary levels".43. It would thus appear that although the respondents are prepared to allow Trade Union involvement in individual cases relating to discipline and grievance they are not prepared to allow their involvement in any discussions whatsoever of salary levels or on other matters on a collective basis. This stance has been taken to emphasise their lack of recognition of the Union. The effect is that the employees can now belong to any union and no union's rights are greater than that of any other union.44. Rather than the provision at paragraph 12 of the House Agreement (...) referred to at paragraph 16 of this Decision the Handbook at paragraph 12 (...) states that:

"12.1

Journalists are free to join or not to join a Trade Union.12.2Journalists are also free to take part in the activities of an independent Trade Union at an appropriate time. For this "appropriate time" means outside working hours."45. No "disputes procedures" as envisaged in the House Agreement is provided in the Handbook. The grievance procedure replaces it."This finding gives effect to the evidence of Mr Wilson himself when he said, "On 22nd January 1990 I received this - there seems to be no other reason for the contracts than they want to deal individually rather than collectively and/or representationally -I accept there were not significant changes in my terms save in relation to trade unions." We have also already referred to the letter from Sir David English of 10th November 1989.On 8th August 1990 AN set up a "Safety Council" to which the Applicant was invited to attend. Whether or not he was invited to attend as "a trade union official" is immaterial. The Tribunal were quite satisfied that the Applicant and other Fathers of the Chapel were chosen to be invited because of their position. A full-time Safety Officer with experience has been appointed and he is to make recommendations to the Safety Council. The Safety Council and its constituent members are said not to be governed by the provisions of the Health and Safety At Work Act 1974, but the Tribunal was satisfied, as are we, there can be no suggestion that that could be a reason for any lack of ability to supervise or to make appropriate recommendations.As must be apparent from what has already been said, this Court has found this an anxious and difficult matter. It must have been so regarded by the Industrial Tribunal. With respect to the careful decision of the learned Chairman we nevertheless find ourselves divided and by a majority unable to accept her reasoning. The minority member is Mr Blyghton and we will hereinafter make it clear where our differences lie.

THE LAW

Section 23 has its beginnings in S.5 of the Industrial Relations Act 1971. That section created three individual rights namely, to join, to be active in and not to have to join a trade union. Section 5(2) made it unlawful
"for any employer ... (a) to prevent or deter a worker from exercising any of the rights ... or (b) to dismiss, penalise or otherwise discriminate against a worker by reason of his exercising any such right ... or (c) ..."
That wording was changed in S.53 of the Employment Protection Act 1975 which wording is now repeated in S.23. This establishes individual rights not to be discriminated against(a) for joining or being a member of a trade union(b) for being an active member of a trade union(c) for not joining a trade union.By an amendment there is a further right not to make certain contribution - S.23(1A). This is not material for present purposes.There is in the judgment of the majority, a clear distinction made between the protection of 'membership' in S.23(1)(a) and of 'activities' - S.23(1)(b).Sections 27 and 28 create and protect individual rights to "time off" whether as an officer or a member of a trade union in order to participate in the activities of that trade union. These rights however depend upon the relevant trade union being recognised.As Mr Wilson failed in his case under S.23(1)(b) and sections 27 and 28, we must concentrate on S.23(1)(a).

He must prove that AN -

(a) took action (short of dismissal)(b) against him as an individual(c) which contravened S.23(1)(a)It is then for AN "to show the purpose for which action was taken against the Applicant". This wording shows that unless "the action" is first shown to be against the "individual", it does not require justification. If we may cite from the learned Editor of Harvey on Industrial Relations and Employment Law at I paragraph 1033 -"In general terms, since all is fair in love and in industrial war, the individual cannot complain if he is wounded in what is a genuine collective engagement; but he can complain if the employer tries to pick him off by sniper fire".To maintain the simile, the individual is not entitled to complain if he suffers indirectly from the fact that collective warfare is being conducted, to put it in other words he cannot complain of suffering a shrapnel wound from shell burst which causes or may cause similar suffering to others, but is entitled to compensation if he suffers injury caused by the sniper's bullet which is aimed at him for the purpose of injuring or killing him. The "action" must be aimed at him and not just cause injury or potential injury to him amongst others.In considering the wording of S.23(1)(A), we have some difficulty with the phrase " preventing or deterring him from being ... a member ...". One would have expected the sequence of thought in connection with membership to have been from "seeking to join", then "joining" and then from "having joined". Activities during membership are expressly protected by S.23(1)(b). The sense would be more readily understandable if for "being" one read "becoming". However, leaving the wording as it is, the only understanding we are able to give to it is "to prevent or deter from remaining a member".Substantial amendments have been made to the employment legislation of the 1970s by the Employment Acts 1980, 1982 and 1988. In particular, as relevant to this appeal, the statutory code governing the recognition of trade unions for the purposes of collective bargaining contained in sections 11 to 16 of the 1975 Act, have been repealed by S.19(b) of the 1980 Act. It was thus open to AN, as clearly envisaged by the legislature, to terminate the collective agreement with the NUJ as it did on 1st April 1990.The only other sections to which we need refer are first, S.24 under which an applicant must bring proceedings before an Industrial Tribunal within three months of "the action complained of", thus emphasising the importance of identifying "the action"; secondly, S.26 which governs the assessment of compensation. The relevant parts are Ss.26(1) and 26(2)

"26 Assessment of compensation on a complaint under S.24

(1)The amount of the compensation awarded by a tribunal on a complaint under section 24 shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant's right under section 23 by the employer's action complained of and to any loss sustained by the complainant which is attributable to that action.

(2)The said loss shall be taken to include -

(a) any expenses reasonably incurred by the complainant in consequence of the action complained of, and(b) loss of any benefit which he might reasonably be expected to have had but for that action."The importance of "the action" is once again made clear and the "loss" is envisaged to be in financial terms or at least capable of being so expressed.It is perhaps useful to analyse Mr Wilson's position at the start of 1989. His Trade Union - the NUJ - had no right to be recognised for collective bargaining purposes. Sections 11 to 16 of the Employment Protection Act 1975 had ceased to have effect. Mr Wilson had no personal right under his contract of employment "to be bargained for". Robinson (supra) and NCB v NUM [1986] ICR 736;772B-C;773C. The House Agreement had no legal force and could be terminated at will - TULRA 1974 - S.18. It is true that during the currency of recognition the Trade Union itself had rights under Part IV of the Employment Protection Act 1975 - "Procedure for handling redundancies".It follows from the above that Mr Wilson had no contractual rights to any fruits of collective bargaining, whether as a member of the NUJ or not - no right "to be bargained for". The most accurate definition of his position vis-a-vis collective bargaining is that the opportunity to benefit from collective bargaining was an incidence of his membership of NUJ derived from and dependent upon recognition of the NUJ by AN. It was an incidence shared by all members of the NUJ.

The steps taken by AN to achieve its purpose were fourfold as follows:-

AFormal notice to terminate the House Agreement as from 1st April 1990.BNotification that there would be a new Handbook which was intended to incorporate all the substantive terms of the House Agreement.CEmployees to be invited to sign new individual contracts acknowledging the new Handbook which would provide them with substantially the same terms and conditions of employment as formerly but with pay individually negotiated. Those who sign would be entitled to a 4.5% payrise as from 1st October 1989.DThe decision that no pay talks were to take place in 1990, but that reviews of salaries would be made in October 1990.The Industrial Tribunal first considered what actions AN had taken and they found them to be threefold as follows:-
"(i)They had de-recognised the union.
(ii)They had changed the terms and conditions of employment of the Applicant and other journalists.(iii)They had paid a 4 1 / 2 % salary increase to those who signed the new contracts."The Tribunal rejected (i), finding that it did not fall within S.23 because "it was not action taken by the respondents against the applicant "as an individual"." It was not "wounding by sniper fire".It seems to us therefore that any disadvantages resulting from that action do not fall within the section.The Tribunal found that (ii) and (iii) did constitute 'action' within the section. They were held to be directed at the Applicant as an individual.

Under the heading "The Tribunal's findings" the Tribunal say this -

"49 The proceedings commenced by originating application on 26 April 1990. When considering the application under Section 23(1) of the Employment Protection (Consolidation) Act 1978 the Tribunal first considered what actions the respondents had taken.
50 These were threefold:-(i) They had de-recognised the union.(ii) They had changed the terms and conditions of employment of the applicant and the other journalists(iii) They had paid a 4 1 / 2 % salary increase to those who signed the new contracts.51 As to (i) the Tribunal were satisfied that this action did not fall to be considered by him under Section 23 because it was not action taken by the respondents against the applicant "as an individual"."In finding under 50(ii) that "they had changed the terms and conditions of employment of the Applicant and the other journalists" the Tribunal, with respect, was making a finding contrary to that which we have already set out in their paragraph 41 and in the evidence of Mr Wilson himself. It is also evident from the letter from Sir David English of 10th November 1989 that, in so far as possible, the terms and conditions were to remain the same save as to collective bargaining. As we have said the "right" to collective bargaining was not a contractual right, it was not a legal right.The result of these three paragraphs is, as we understand it, that the "actions" found by the Tribunal is limited to 50(iii), De-recognition is expressly rejected as relevant. The only relevance of paragraph 50(ii) is in paragraph 55 which reads -
"The Tribunal were satisfied that to place an employee into the position of either accepting unilaterally imposed new conditions of employment or leaving the employment and taking his chances in the court or the Industrial Tribunal was an action short of dismissal within the context of the legislation. To put an employee in such a dilemma whether justifiable or justified later must be such. It seemed to the Tribunal that both actions fell within this category."
We, the majority, find some difficulty in understanding the dilemma. The choice was whether or not to accept the new terms of contract. His membership of the trade union was unaffected. Benefits of membership were removed collectively and not individually. Mr Wilson has not and did not have to leave his employment. He has in fact brought proceedings without leaving his employment. The 'new' conditions were 'different conditions' and not substantially different. One hundred and thirty-eight (138) members of the NUJ were content to accept them and to maintain membership.

Paragraph 57 of the decision reads -

"The purpose was not in dispute - it was "to end collective bargaining". But what does that mean?"
From this it is clear that it was common ground that the purpose was "to end collective bargaining" and this is part of what we have termed as the "collective engagement". It is not suggested that that purpose was not a genuine one.As it is agreed that the test is in a sense subjective, paragraphs 58 and 59 of the Decision were not relied upon by either side in arguing this appeal.

Paragraph 60 reads -

"The Tribunal were satisfied that in the context of this case and on the facts we have found the respondents purpose was so to reduce the power of the union as to negate it totally. If this had not been their purpose they could have recognised the union for matters other than wage negotiations if they had so wished."
This finding seems to us to conflict with that in paragraph 57, unless it is saying the same thing in different words. The effect of de-recognition will of course be to lessen the overall power of the NUJ in that its place in collective bargaining for wages and conditions will have been removed. There was no evidence, but experience tells us that there may well have been other fields in which the benefit of membership could still have been felt. Legal and financial advice could no doubt be obtained. Thus, we could find no evidence that membership of the NUJ would be pointless. It would of course be without the benefit of collective bargaining but that is an obvious statement.Finally, we would refer to paragraphs 62 and 63 in which the final conclusions of the Industrial Tribunal are set out. They read as follows -
"The Tribunal did not consider that the respondents could hide behind their right to de-recognise the union so as to deny successfully their ultimate purpose which was to effect the wholly foreseeable consequence of debarring individual journalists from being union members.
Further the Tribunal were satisfied that the non-payment of the 4 1 / 2 salary rise was a penalty meted out to those who refused to accept their action."The breaches of Section 23(1)(a) there found are first "deterring individual journalists from being union members". This finding of a "purpose" is contrary to paragraph 57, the evidence all points the other way. One hundred and thirty-eight of those signing the new contract remain members of the NUJ. Foreseeability is not the same as "purpose". Even if the finding in paragraph 63 is accepted this does not affect membership.We find it difficult to see that this action taken against Mr Wilson as an individual could only be by the 4 1 / 2% pay rise to those who agreed to sign. This did not deter him from remaining a member of the NUJ nor penalise him for being a member. To have signed the new contract would not have affected his membership.Mr Hendy, in his most helpful submissions, answers these last points by submitting that although Mr Wilson's contractual rights were not affected, he was in fact deprived of the "fruits" of membership, which he had previously enjoyed. These benefits for which he had no contractual rights against AN, but which he had in the past in fact enjoyed. He equates the "fruits of membership" with "membership".He emphasises in particular that Mr Wilson has lost the benefit of collective negotiation of an annual wage increment agreeable to both employer and employee ie, that is to the Trade Union on behalf of the employee. Secondly, Mr Wilson has suffered a refusal by an employer even to consult him or his representative about a wage increase. Even if he signed the contract, any wage increase would be imposed upon him, submits Mr Hendy. He does not accept that the second paragraph of Sir David's letter of November 1988 as being a system by which an employee could work through his line manager and make representations upon his own individual efforts.Mr Hendy refers to a number of other changes in the employment situation. Mr Wilson's Trade Union was excluded in all matters; the Trade Union was excluded from receiving any notification of proceedings in disciplinary procedures; grievances had to be raised personally; there was no collective representation or bargaining in some matters, for instance, car parking allocation. There was no procedure for dealing with collective issues after the introduction of the new arrangements; there was no longer any accreditation of the Health and Safety arrangements under the Health and Safety at Work Act; the Trade Union representative when acting in matters of discipline, grievance and health and safety was not recognised as such when so acting; deregulation excluded the employee from the benefits of consultation in the event of a transfer of undertakings or a collective redundancy (S.99); the restriction on the use of "casuals" was removed under the new arrangements; new entrants could be accepted on worse conditions than existing employees; and there was removal of the encouragement to become and remain a member of the Trade Union as under the terms of the collective agreement.Mr Hendy frequently emphasises that the changes had been imposed upon Mr Wilson without his consent, a unilateral change of the employment scene, of the way the employer/employee relationship had been conducted. That is certainly true, but this was the result of the termination of the collective agreement, which by the inclusion of the provision for notice was anticipated. If this submission is correct, the collective agreement could never have been terminated without an employer incurring some form of liability. The legislature envisaged that derecognition was an option open to an employer.Mr Blyghton expresses his reasoning as follows. The only way it can be established that discrimination due to trade union activities has taken place is in relation to how it has affected the individual person. The union is not involved as a party in the proceedings. The individual has to establish that the employer has caused discrimination and it is the same situation in reverse as to how it affects the non-membership position. To deal with the matter in any other way would tend to favour the non-member and it was never intended that this should be so. All should be treated equally.The Respondent's background with the union is set out above in the judgment. Action short of dismissal was taken against all who were union members. The majority accepted the employer's proposals, but others who treated the proposals as discrimination did not accept. Collective bargaining through their union was withdrawn at the same time that a wage increase was given to those who signed. The respondent was the Father of the Chapel, the senior lay member of the union. Not only was recognition of his union withdrawn; he was denied the right of being able to represent his members which he had been doing for a long time. It cut deeply into his fundamental beliefs which would be identical to any individual who was discriminated against for his aversion to being a member of a trade union. He lost many rights to which he felt he was entitled.In the past it has been confirmed that a union discriminated against an individual for persuading an employer not to grant a wage increase to a non-member as these had been negotiated by the union for their members only. Subsection 23(1) confirms 'every individual ...'. In my view Associated Newspapers contravened this section on the lines set out by the Industrial Tribunal. Not only did the Respondent lose the benefit of the union assistance through collective bargaining on all issues of the contract, but lost 4.5% of the salary. How could it be said that the same terms and conditions continued to operate. I do not accept the arguments that the contract remained the same. This deterred many of the journalists who signed the individual agreement. Up to the offer of the individual contract the right to union representation on all employment issues existed through the contract of employment. It was in my view incorporated in the contract until upon notice it was cancelled.The Tribunal's reasons as set out in Para 50(ii) is confirming 'an action short of dismissal' and its description of the situation as a dilemma is that envisaged by the legislation because after all why include this within the Act. You either accept it or you do not. What other reason could be advanced when considering these words. The denial of union representation was very important to the Respondent as it would be to any other individual member. The same would apply to any non-member who held likewise a genuine belief.Despite the enormous experience of Mr Blyghton in this field, we, the majority find ourselves unable to accept this reasoning on the law as we understand it to be.May we repeat our understanding in general terms - de-recognition is permitted: the collective agreement envisage termination on notice: the "action" in S.23 must be aimed at the "individual":
"collective detriment", that suffered by all members equally, is not the subject of S.23; causation is required by S.26; the "action" must cause the detriment; the Industrial Tribunal rejected de-recognition as an "action"; the detriment caused by the de-recognition must also be disregarded; the only relevant "action" found was the "4 1 / 2 % pay rise", this finding must stand alone, it cannot be deemed to include de-recognition which had already been rejected; "4 1 / 2 % pay rise" alone did not affect Mr Wilson's membership nor did it "cause" the loss of any benefit which existed before or remained after de-recognition; the only "cause" was Mr Wilson's decision not to enter into the new contract, but to remain on his old contract. He was not told, "
If you are a member of the NUJ there is no 4 1 / 2 % pay rise" nor "you must leave the NUJ in order to obtain your pay rise".Thus it seems to the majority that the reasoning of the Industrial Tribunal was flawed in that:-(a) in paragraph 50 - the Tribunal found that the second "action" relied upon was that "they had changed the terms and conditions of the Applicant and the other journalists". This seems to us to be a finding contrary to the evidence as accepted by Mr Wilson and also contrary to their finding of the Tribunal in paragraph 41 of the Decision. In fairness to the Tribunal it does not seem to have formed an important part of their subsequent thinking.The sole "action" was the "4 1 / 2 % pay increase" (AN whilst reserving its position in Higher Courts accepted that this could be the basis of a finding of "action"). (b) Having found that AN's purpose which was "not in dispute" was "to end collective bargaining", the Tribunal then placed its own interpretation on this phrase. It was common ground before us that the test was subjective provided it was genuine, and there is no suggestion that it was not. (c) In paragraphs 60 and 61 the Tribunal purport to find a "purpose" which was in conflict with their previous finding in paragraph 57. Even if this is only intended to be an extension of their finding in paragraph 57, the Tribunal has erred in effectively bringing back into the causation, "de-recognition" which it had already rejected as forming "action". (d) The conclusions are reached in paragraphs 62 and 63. De-recognition is reintroduced in paragraph 62. The "4 1 / 2 % salary rise" as "action" did not alone affect Mr Wilson's membership nor his benefits and it is only when considered alone that it is to be considered as "action" within S.23.For those reasons and the reasons given within this judgment the majority form the view that the decision of the Industrial Tribunal was flawed and was erroneous in law.We, the majority, fully understand and respect Mr Wilson's depth of feeling and his determination to stand by his Trade Union principles, but as the law stands, in our judgment, on the facts of this case as found by the Industrial Tribunal he has no remedy under S.23(1)(a).This appeal therefore is allowed. Leave to appeal.