Associated Newspapers Ltd v Wilson

An employer’s omission to confer a benefit cannot constitute action taken against an employee under section 23(1) of the Employment Protection (Consolidation) Act 1978. The extended definition of action in section 153(1) is excluded by the context. Applying it would also make an unintended substantive change through a consolidation Act.

Section 23(1)(a) protects trade union membership as such. It does not equate membership with collective bargaining or the use of union services. An inducement to accept individual employment terms therefore contravenes the provision only if the employer’s actual purpose is to prevent, deter or penalise union membership. The foreseeable weakening of collective representation is insufficient.

These conjoined appeals concerned employers who offered higher pay to employees willing to accept individual contracts outside collective bargaining arrangements. Mr Wilson and three port employees declined the offers and alleged that withholding the increases infringed section 23(1)(a) of the Employment Protection (Consolidation) Act 1978.

The industrial tribunals upheld the complaints. The Employment Appeal Tribunal allowed the employers’ appeals by majority decisions reported at [1992] ICR 681 and [1993] ICR 101. The Court of Appeal restored the tribunals’ decisions in [1994] ICR 97.

The House considered whether withholding a benefit was “action” within section 23(1), and whether the employers acted for the statutory purpose of deterring or penalising trade union membership.

1. The appeals were allowed unanimously. The Court of Appeal’s orders were set aside, the Employment Appeal Tribunal’s orders were restored, and the proceedings were remitted to that tribunal.

2. Per Lord Bridge of Harwich, with Lord Keith of Kinkel agreeing, and Lord Browne-Wilkinson agreeing on this decisive issue, section 153(1) of the Employment Protection (Consolidation) Act 1978 did not make an omission “action taken against” an employee for section 23(1). The statutory phrase naturally described positive action against an employee. Treating a failure to confer a benefit as equivalent would require substantial redrafting and leave uncertain when an obligation to act arose.

   The legislative history confirmed that conclusion. Section 23 reproduced section 53 of the Employment Protection Act 1975, to which no extended definition of action applied. By contrast, section 5(4) of the Industrial Relations Act 1971 had expressly addressed benefits granted to some workers and withheld from others. Applying section 153(1) would therefore make an unintended substantive change through a consolidation Act. The majority accordingly overruled National Coal Board v Ridgway [1987] ICR 641.

3. Lord Slynn of Hadley and Lord Lloyd of Berwick dissented on that point. They considered the statutory definition applicable and regarded the withholding of the increases as action against the employees. They nevertheless joined in allowing both appeals because the required statutory purpose was absent.

4. Per Lord Bridge, whose reasoning on this issue was adopted by Lord Keith, section 23(1)(a) protected union membership as such. Lord Lloyd reached substantially the same conclusion, and Lord Slynn also concluded that the relevant purpose had not been established. Collective bargaining or representation could not generally be equated with membership or treated as an essential service of every union. The broader statements in Discount Tobacco and Confectionery Ltd v Armitage [1990] IRLR 15 placed an imprecise gloss on the statute and were inapplicable.

5. The tribunals had not been entitled to infer that the pay differentials were intended to deter or penalise union membership. Ending collective bargaining, achieving flexibility and encouraging individual contracts were distinct from discouraging membership. A foreseeable reduction in a union’s influence or attractiveness did not establish the employer’s actual statutory purpose.

1. House of Lords: Allowed both employers’ appeals unanimously. It set aside the Court of Appeal’s orders, restored the Employment Appeal Tribunal’s orders and remitted the causes to that tribunal.

2. Court of Appeal: In [1994] ICR 97, unanimously allowed the employees’ appeals and reversed the Employment Appeal Tribunal decisions.

3. Employment Appeal Tribunal: By majority decisions reported at [1992] ICR 681 and [1993] ICR 101, allowed the employers’ appeals from the industrial tribunals.

4. Industrial tribunals: Upheld the employees’ complaints under section 23(1)(a) of the Employment Protection (Consolidation) Act 1978. Mr Wilson received a declaration, with compensation adjourned; the port employees were awarded compensation.