Johnston v Welsh National Opera Ltd

Where a collective agreement incorporated into an employment contract prescribes a procedure for poor artistic performance, the employer must comply with that procedure according to its proper construction. A procedure addressing poor artistic performance is not confined to solo performance merely because ensemble assessment is difficult, unless the contractual language supports that limitation. The contractual obligation is a material circumstance when assessing fairness under section 98(4) of the Employment Rights Act 1996. A tribunal’s assessment of the range of reasonable responses is unsound if it rests on a fundamental misconstruction of the contract. The appropriate remedy may be remission for a complete rehearing where the error permeates the tribunal’s reasoning and substitution would be inappropriate.

The claimant, a principal oboist, was dismissed for capability after prolonged concerns about his playing, including ensemble performance. His employer operated a solo audition procedure under a collective agreement, but declined to use it for ensemble playing and instead adopted a procedure resembling disciplinary proceedings.

An Employment Tribunal rejected the claimant’s ordinary unfair-dismissal claim under section 98(4) of the Employment Rights Act 1996. It held that the collective agreement did not cater for ensemble performance and that the employer’s chosen procedure fell within the range of reasonable responses. The appeal concerned whether the tribunal had misconstrued the contractual procedures and whether that error affected its fairness assessment.

1. Appeal allowed. The Employment Tribunal had misconstrued the claimant’s contract of employment, and its conclusions on fairness under section 98(4) were consequently unsound.
2. The collective agreement was incorporated into the claimant’s contract. Clause 1.17, headed “Poor Artistic Performance”, applied to musicians and created a mechanism for determining whether poor artistic performance existed. Although the clause did not expressly provide for ensemble playing, it was silent on that subject and contained no language excluding it. Difficulty in conducting an ensemble audition was not a proper basis for reading such an exclusion into the contract.
3. The words requiring the procedure to be followed before termination made the procedure mandatory, notwithstanding the permissive wording that the contract “may be terminated”. Clause 1.18 separately demarcated the disciplinary procedure from the poor artistic performance procedure. Properly construed, the handbook’s parenthetical reference to musicians did not override or nullify that contractual distinction.
4. The claimant’s contractual entitlement to the procedure was a fundamental plank of the tribunal’s reasoning. Its assessment that the employer acted reasonably in refusing to adopt the procedure depended substantially on the erroneous construction. The tribunal could not therefore be assumed to have reached the same conclusion had it recognised that the procedure applied to ensemble performance.
5. The Employment Appeal Tribunal declined to substitute its own judgment. The case was remitted for a complete rehearing before a differently constituted Employment Tribunal. The vitiating flaw running through the judgment, together with the tribunal’s strongly expressed conclusions, made remission appropriate.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s judgment sent to the parties on 26 October 2010 and remitted the case for a complete rehearing before a differently constituted tribunal.