Norris v London Fire and Emergency Planning Authority

For the purposes of section 14(5) of the Employment Rights Act 1996, a refusal to perform work which the employee believes is not contractually required is not, without more, industrial action. The additional element ordinarily required is collective action, or action pursuant to a collective arrangement, with the object of applying pressure to achieve an ulterior employment-related aim. A personal refusal is not transformed into industrial action merely because it began during an official dispute. Once the collective dispute has ended, a distinct personal grievance may re-emerge.

Firefighters designated as competent to act up as watch managers participated in official industrial action concerning proposed changes to shift patterns and other efficiencies. The action included a ban on acting up. Three employees continued refusing to act up after the official action ended, and the employer continued making 20 per cent wage deductions.

The Employment Tribunal dismissed their claims under Part II of the Employment Rights Act 1996, holding that section 14(5) barred them because the continuing refusals were a continuation of the industrial action. The appeal concerned only the deductions made after 24 December 2010. The central issue was whether those continuing refusals constituted participation in industrial action.

1. Appeal allowed. Section 14(5) of the Employment Rights Act 1996 did not bar the claims concerning deductions made after 24 December 2010.

2. A refusal to perform a task which an employee believes is not contractually required does not, without another element, constitute industrial action. It may do so where the refusal is used collectively to apply pressure in pursuit of an ulterior employment-related object.

3. The disputes concerning CM* status and shift-pattern changes were analytically distinct. The fact that the collective dispute contributed to the employee’s stance did not make the later personal grievance a continuation of that dispute after it had been resolved.

4. The continuing refusal was not an attempt to improve the employee’s terms and conditions. It was simply a refusal to perform work which he believed he was not obliged to undertake. Any pressure on the employer to accept that contractual position was merely incidental.

5. Ordinary industrial action connotes collective action by more than one worker. A lone employee acting independently is not ordinarily taking part in industrial action. A single employee may participate where a group has agreed that the employee will act as a key worker in pursuit of a common object; that exception did not arise here.

6. During the official action the Appellants participated in the collective action, notwithstanding their personal motivations. After it ended, their separate contractual grievances could re-emerge.

7. Bowater Containers Ltd v Blake was followed on the lone-employee issue. Lewis and Britton v E Mason & Sons was not followed and was regarded as wrongly decided on that issue.

1. Employment Appeal Tribunal: The appeal from the Employment Tribunal was allowed. The Employment Tribunal had dismissed the claims for lack of jurisdiction under section 14(5) of the Employment Rights Act 1996.