Welsh National Opera Ltd v Johnston

A collective agreement governing musicians’ poor artistic performance must be construed according to its objective protective purpose. Unless the wording clearly provides otherwise, the procedure applies to every aspect of poor artistic performance, including ensemble playing. The assessment method may be adapted to the particular difficulty, but must retain the agreed safeguards against subjective assessment. An employer cannot replace that procedure with a disciplinary or hybrid procedure merely because the agreed procedure is difficult to apply or incomplete. Dismissal in breach of the agreed procedure is procedurally unfair.

A principal oboeist employed by Welsh National Opera Ltd was dismissed for capability-related concerns, principally concerning the blending of his sound with the orchestra. The Employment Tribunal found the dismissal substantively and procedurally fair, holding that the collective agreement’s audition procedure did not apply to ensemble playing and that a modified disciplinary procedure was within the range of reasonable responses.

The Employment Appeal Tribunal allowed the employee’s appeal, holding that the audition procedure covered all aspects of poor artistic performance, subject to modification where necessary, and remitted the case. Welsh National Opera appealed to the Court of Appeal on the issue of legal error and the proper construction of the collective agreement.

1. Appeal dismissed. The Employment Appeal Tribunal correctly identified a legal error in the Employment Tribunal’s construction of the collective agreement. The case was remitted to the Employment Tribunal solely for a remedies hearing.
2. The disciplinary procedure in the Company Handbook expressly excluded musicians in cases of poor performance. That exclusion was consistent with paragraph 1.18.1 of the WNO/MU Agreement, which reserved poor artistic performance for the procedure in paragraph 1.17.
3. Paragraph 1.17.1 did not exclude below-standard ensemble playing. Its purpose was to protect musicians from an excessively subjective assessment by requiring an objective audition process, including separate panels and union participation. The provision was not confined to solo playing or piano accompaniment.
4. The appropriate audition could be arranged to address the particular perceived problem. For ensemble playing, assessment might take place in ensemble conditions, including during rehearsal or performance, with the panel concentrating on the musician concerned. Such adaptation had to preserve the procedure’s objective safeguards.
5. It was a legal error to treat the collective agreement as silent on ensemble playing and to substitute a disciplinary or hybrid procedure, even without oral, written and final warnings. That approach was procedurally unfair and was not within the range of reasonable responses. A finding of procedural unfairness was inevitable, so remittal was limited to remedies.

• Court of Appeal (Civil Division) dismissed Welsh National Opera Ltd’s appeal and remitted the case to the Employment Tribunal solely for a remedies hearing.
• Employment Appeal Tribunal allowed the employee’s appeal from the Employment Tribunal and remitted the case for rehearing: UKEAT/0015/11/LA.
• Employment Tribunal found the dismissal substantively and procedurally fair.