Johnstone v BBC Enterprises Ltd [1993] UKEAT 173_91_1003

EAT
Johnstone v BBC Enterprises Ltd
[1993] UKEAT 173_91_1003 · 1993-03-10
independent Trade Union. In March 1989 he became an official of the branch of his Union at his place of work. He was a computer analyst programmer employed for a period of two years from 13th June 1988. His contract expired on 12th June 1990 and was not renewed.The contract of employment fixed for the two years included a clause:
"Insofar as it is permitted by current employment legislation, non-renewal or non-extension of this engagement when its term expires shall not constitute grounds either for a claim of unfair dismissal or for any redundancy payment."
The contract expired by effluxion of time on 12th June 1990 and was not renewed.By an Originating Application dated 6th September 1990 Mr Johnstone complained:1.Under S.24(1) of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act") that the Respondents (BBC) had taken action (short of dismissal) against him as an individual for the purpose of preventing or deterring or penalising him for participating at an appropriate time in the activities of a trade union. This was an alleged breach of S.23(1).2.Under S.67 of the same Act that his dismissal was unfair for a reason specified in S.58(1).The claim under S.58 was abandoned at the hearing before the Industrial Tribunal. The claim pursuant to sections 23 and 24 was rejected by an Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Oliver Lodge on 22nd January 1992 and Mr Johnstone now appeals.So far as material, S.23 of the 1978 Act reads as follows:
"(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)... (b)preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for so doing; or (c)..."
By virtue of S.153(1) "action" includes "omission".The relevant action upon which reliance was placed was the failure to renew Mr Johnstone's contract of employment when it expired on 12th January 1990.The question which the Tribunal set itself was expressed in paragraph 8 thus:
"The issue to which the present decision relates is whether the respondent's admitted failure to renew the applicant's contract of employment was an action short of dismissal entitling the applicant to present a complaint under section 24 of the 1978 Act. If it was, the applicant's complaint was presented within the 3 months' time limit prescribed by section 24(2). If it was not, an issue remains to be determined as to whether one of the other alleged actions occurred within the 3 months' period."
What meaning, therefore, is to be given to the word "dismissal" in S.23?The relevant provisions of S.55 of the 1978 Act are as follows:
"(1) In this Part, ... 'dismissal' and 'dismiss' shall be construed in accordance with the following provisions of this section.
(2) ... an employee shall be treated as dismissed by his employer if, but only if, -(a) ... or(b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or(c) ..."The structure of the 1978 Act indicates a progressive application of its provisions to a contract of employment. Part I is headed "Particulars of Terms of Employment": Part II, "Rights Arising in Course of Employment": Part III, "Maternity": Part IV, "Termination of Employment": Part V, "Unfair Dismissal": Part VI, "Redundancy Payments": Part VII, "Insolvency of Employer", Part VIII, "Resolution of Disputes Relating to Employment".Section 55 is in Part V and the S.55 dismissal provisions are repeated in S.83 in Part VI. (For convenience in this judgment we refer to the S.55 definition as the "S.55 dismissal"). There is no definition of "dismissal" in the interpretation section - S.153. Section 23 is in Part II and the word "dismissal" is not defined for the purposes of that Part, thus, submits Mr Westgate, applying the general law to the facts of this case there was no dismissal and the failure to renew Mr Johnstone's contract was "action short of dismissal".He accepts that if "dismissal" in S.23 is to be understood as a "S.55 dismissal", then his case fails. He also accepts that as S.23 is now repealed and has become S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"); because of the different wording in S.298 of that Act which now contains the "S.55 dismissal" and is preceded by the words "in this Act", his client would be bound to fail under the present law.First of all, we look for guidance from within the 1978 Act itself. Section 23(1) and S.58(1) are complementary. The one deals with the currency of employment and the latter with its termination. This seems clear from the reasoning of Nicholls LJ in National Coal Board v. Ridgway [1987] ICR 641 at 661F where, in considering the phrase "an independent trade union", the learned

Lord Justice says:

"The remaining question concerns the true construction of the expression "an independent trade union" in section 23(1)(a). That phrase was present in the section when it was enacted in 1978, and therefore it will be helpful to set out section 23(1) in its original form, and also section 58(1), the two subsections being parallel provisions, section 58 dealing with dismissal and section 23 dealing with action short of dismissal. It is obvious, and it was common ground before us, that the expression "an independent trade union" bears the same meaning in the two sections."
We would also draw attention to the phraseology at p.663B where the learned Lord Justice uses the expression "when one turns to the corresponding provisions in S.58 ...". It seems to us therefore that the word "dismissal" should be given the same meaning in both sections and moreover it is a sound principle of construction that the same word should, if possible, be given the same meaning throughout an Act. It requires a very strong case for it to be otherwise. Secondly, it is only by reason of the S.142 exclusion clause that Mr Johnstone does not have two causes of action, in each of which the word "dismissal" would have to be construed, and to construe them differently in each case seems to us to be contrary to common sense. It cannot be seriously contended that each section is intended to cover the same situation.We next consider the 1978 Act as a consolidating Act. As Lord Reid said in Inland Revenue Commissioners v. Hinchy [1960] AC 748 at p.768:
"The Act of 1952 is a consolidating Act, and one must presume that such an Act makes no substantial change in the previous law unless forced by the words of the Act to a contrary conclusion. Therefore, in interpreting a consolidating Act, it is proper to look at the earlier provisions which it consolidated."
The seeds of both S.23 and S.58 of the 1978 Act are to be found in S.5(2) of the Industrial Relations Act 1971. In that Act the definition of "dismissal" was "a S.55 dismissal".The 1971 Act was repealed by the Trade Union and Labour Relations Act 1974 ("the 1974 Act"). The S.58 provisions were included in Schedule 1 to that Act and the "S.55 dismissal" was included in that Schedule but the definition was necessarily preceded by the words "in this Schedule".Those parts of S.5(2) of the 1971 Act which dealt with discrimination apart from dismissal were not included in the 1974 Act, but first found expression again in S.53 of the Employment Act 1975 ("the 1975 Act"). By S.126(1) of the 1975 Act the "S.55 dismissal" was incorporated into that Act by reference to the Schedule to the 1974 Act. Section 53 of the 1975 Act is the precursor in its wording to the present S.23 of the 1978 Act.By virtue of sections 159(3) and 160(2) and Schedule 17 of the 1978 Act, S.53 of the 1978 Act was repealed with effect from 1st November 1978 and the whole of Parts II and V of the 1978 Act came into force on that same day. By Paragraph (12) of Schedule 16 to the 1978 Act, the definition of "dismiss" and "dismissal" in S.126(1) of the 1975 Act was amended by substituting the words "S.55 of the 1978 Act" for the words "Paragraph 5, Schedule 1 of the 1974 Act". Thus, until one looks at the wording of the 1978 Act, it is clear that both in respects of the previous history of sections 23 and 58 the definition of "dismissal" was the "S.55 dismissal". It is also to be noted that the words preceding the definition were either "in this Act" or where necessary "in this Schedule".It is only therefore when one looks at the 1978 Act that one sees that the definition is not in S.153, the interpretation section, but is inserted in specific parts of the Act.The Industrial Tribunal give their reasoning for rejecting Mr Westgate's submissions in paragraph 16 as follows:
"Mr Westgate submitted that, by confining the section 55 definition to Part V of the 1978 Act, Parliament must have intended that the expression "dismissal" where it occurs in section 23 of that Act should have a different meaning from that which it had in the corresponding provision of the 1975 Act. We are unable to accept that submission. The 1978 Act is a consolidating statute in construing which there is a presumption that the law was not intended to be altered. That presumption must yield to plain words to the contrary but we find no plain words in the present case. Mr Westgate's submission involves crediting Parliament with the intention of making a substantive alteration to the law by a side wind. We do not believe there was any such intention. We think that "dismissal" in section 23 of the 1978 Act has the same meaning as it had in section 53 of the 1975 Act. We hold therefore that the respondent's failure to renew the applicant's contract when it expired by effluxion of time constituted dismissal and was not action short of dismissal."
We entirely agree with the reasoning of the Industrial Tribunal and would only add some comments.Mr Westgate submitted that S.23 was not intended only to have effect during the currency of the employment, but to continue to have effect after its termination. He relied upon the definition in S.153 of the 1978 Act of "employer" and "employee". There may of course be certain rights arising under the contract which continue to be of effect after its termination, but these obligations arise by contract and are enforceable as such. Looking at the Act as a whole and the heading of Part II in particular, we are inclined to the view that the provisions of S.23 are intended to prevent discrimination during the currency of the employment.The only section in Part II in which the word "dismissal" occurs is S.23 in the phrase "action (short of dismissal)", and it may very well not have occurred to the draftsman of the 1978 Act that he needed to provide a separate definition of "dismissal" for that Part.In any event the 1992 Act is itself a consolidating Act and as is conceded this has restored the clarity of the earlier legislation.For the reasons which we have given therefore we entirely agree with the conclusions reached by the Industrial Tribunal and this appeal is dismissed.