Associated Newspapers Ltd v Wilson

The House of Lords allowed the employers' appeals. The principal legal question decided was whether the definition in section 153(1) of the Employment Protection (Consolidation) Act 1978 (that "action" includes omission) applies to the phrase "the right not to have action . . . taken against him" in section 23(1). The majority concluded that the context of section 23(1) requires exclusion of that extended definition and that withholding a benefit from some employees does not, as a matter of law, constitute "action taken against" other employees for the purposes of section 23(1). On this basis the decisions of the industrial tribunals and the Court of Appeal which had treated omissions of this kind as actionable were set aside in favour of the Employment Appeal Tribunal decisions. The Lords also considered whether the employers' purpose was to deter or penalise union membership; on the facts the House held there was insufficient basis to find that purpose established.

The appeals arose from two related sets of proceedings in which long-established collective bargaining arrangements were terminated and employers offered individual contracts accompanied by pay increases to those who signed. In Associated Newspapers Ltd v Wilson journalists who refused to sign were not given a 4.5% pay increase; in Associated British Ports v Palmer and others manual workers who did not accept individual contracts were not given a pay rise. Each group claimed unlawful "action (short of dismissal)" under section 23(1) of the Employment Protection (Consolidation) Act 1978 on grounds that withholding the benefit was intended to deter or penalise union membership or activity.

The litigation path was: industrial tribunals found for the employees and awarded remedies; the Employment Appeal Tribunal allowed the employers' appeals; the Court of Appeal reversed the EAT and upheld the tribunals' findings; leave to appeal to the House of Lords was granted. The House considered (i) whether the statutory definition in section 153(1) that "action" includes omissions applies to section 23(1); (ii) whether omissions consisting of withholding pay increases could constitute actionable "action" for the prohibited purposes in section 23(1)(a); and (iii) whether, on the evidence, the employers' purpose was to deter or penalise union membership.

The House concluded (majority) that the wording and legislative history point away from treating every omission of a benefit as "action" under section 23(1) and that the draftsman, in enacting the consolidating Act, did not intend to give section 23(1) the extended scope conferred by section 153(1). The majority therefore rejected the broad reading in National Coal Board v Ridgway and held that withholding pay increases in these cases was not, in law, capable of amounting to a contravention of section 23(1). The House also held that on the facts there was no adequate finding that the employers acted for the forbidden purpose of deterring or penalising union membership.

Relief sought: employees sought declarations and compensation for unlawful action under section 23(1). Issues framed: statutory construction of "action" and whether the facts established the prohibited purpose. Reasoning: the majority relied on grammatical and consolidation-drafting principles, the legislative history of the 1971, 1974 and 1975 enactments, and the absence of language comparable to the specific anti-discrimination provision previously in the 1971 Act; they concluded that the narrower statutory meaning applied and that the factual findings did not establish the requisite purpose.

The appeals were allowed. The House held that the extended definition in section 153(1) should not be applied to section 23(1) in the way the courts below had done; accordingly withholding a benefit from some employees was not, as a matter of law, capable of amounting to "action (short of dismissal) taken against" other employees for the purposes of section 23(1). On the facts the tribunals had not established that the employers acted for the prohibited purpose of deterring or penalising union membership.

Claims began at industrial tribunals (decisions for the employees); Employment Appeal Tribunal allowed the employers' appeals (Wood J.; reported decisions cited in the judgment); the Court of Appeal reversed the EAT (Court of Appeal orders of 30 April 1993); the House of Lords set aside the Court of Appeal orders and restored the Employment Appeal Tribunal orders (House of Lords judgment 16 March 1995).