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[1995] 2 All ER 100

Associated Newspapers Ltd v Wilson; Associated British Ports v Palmer and others

HOUSE OF LORDS

LORD KEITH OF KINKEL, LORD BRIDGE OF HARWICH, LORD BROWNE-WILKINSON, LORD SLYNN OF HADLEY AND LORD LLOYD OF BERWICK


31 OCTOBER, 1-3, 7 NOVEMBER 1994, 16 MARCH 1995



Industrial relations - Trade union membership and activities - Rights of worker as against employer - Unfair industrial practice by employer - Action short of dismissal - Action taken against employee as an individual - Derecognition of union - Payment of salary differential to employees who switched from collective bargaining to individual contracts of employment - Whether omission to offer employee a benefit conferred on another employee amounting to 'action ... taken against' employee from whom benefit was withheld - Whether employer's purpose in paying a salary differential was to prevent or deter union membership - Employment Protection (Consolidation) Act 1978, ss 23(1), 153(1).

In two separate appeals the question arose whether, if an employer offered employees a pay rise as an inducement to switch from collective bargaining to individual contracts, that amounted to 'action ... taken against' those employees who refused to switch 'for the purpose of ... preventing or deterring' them from being members of a trade union and thereby contravened s 23(1)^a of the Employment Protection (Consolidation) Act 1978. Under s 23(1) an employee had the 'right not to have action ... taken against him as an individual by his employer for the purpose of--(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so ...' In both cases, the employer wished to replace collective bargaining with the relevant union to determine rates of pay and other terms and conditions of employment with individual contracts of employment with each employee. In the first case, the employer offered its employees the option of continuing with contracts negotiated by collective bargaining or switching to individual contracts and offered a pay rise to those employees who accepted personal contracts of employment but not to those who opted to continue to have their rates of pay determined by collective bargaining; in the second case, the employer terminated collective bargaining with its employees and granted a pay rise to those who signed new contracts of employment but not to those who refused to sign. Employees who switched to individual contracts were still permitted to remain members of their union. In both cases, the employers claimed that their purpose was not derecognition of the union but to get rid of collective bargaining, but in both cases employees who had rejected the offer of personal contracts of employment made a complaint to an industrial tribunal that the employers' action had infringed their rights under s 23(1), which complaints were upheld. On appeal by the employers the Employment Appeal Tribunal allowed the appeal, but on appeal by the employees that decision was reversed by the Court of Appeal. The employers appealed to the House of Lords, where the issue was

^a     Section 23(1), so far as material, is set out at p 103 j to p 104 a, post

[1995] 2 All ER 100 at 101

taken for the first time that although s 153(1)^b of the 1978 Act provided that in the Act 'except so far as the context otherwise requires "act" and "action" each includes omission and references to doing an act or taking action shall be construed accordingly', an omission to confer a benefit on an employee which was conferred on another employee did not amount to 'action ... taken against' that employee for a purpose prohibited by s 23(1) of the Act.

^b     Section 153(1), so far as material, is set out at p 104 j, post

Held - The appeals would be allowed for the following reasons--

(1) (Lord Slynn and Lord Lloyd dissenting) On the true construction of ss 23(1) and 153(1) of the 1978 Act the omission to offer an employee a benefit conferred on another employee did not amount to 'action ... taken against' the employee from whom the benefit was withheld, since a literal application of s 153(1) to s 23(1) produced grammatical ambiguity in that if the concept of taking action against a person was to embrace the concept of omitting to act, the omission had to be an omission to act in that person's favour without the circumstances in which the obligation to take action in favour of the employee was to arise being spelt out. Furthermore, the legislative history of s 23 of the 1978 Act, which was a consolidating statute, showed that prior to the 1978 consolidation there was no legislative intention of applying any definition giving an extended meaning to the word 'action' in s 23 to include omissions (see p 102 j, p 105 h to p 106 b, p 107 b c, p 108 f g, p 109 c and p 112 c, post); dictum of Lord Reid in Beswick v Beswick [1967] 2 All ER 1197 at 1204 applied; National Coal Board v Ridgway [1987] 3 All ER 582 overruled.

(2) (Lord Browne-Wilkinson dubitante) Although a union which had no collective bargaining agreement with an employer was unable to offer its members that service, it was able to offer them other important and valuable services and it could not be said that the service of collective bargaining was an essential union service or that membership of a union unable to offer that service was valueless or insignificant. Furthermore, the evidence did not establish that the employers' purpose in paying a salary differential was to prevent or deter union membership but merely that they wished to end collective bargaining. Derecognition of the unions for collective bargaining purposes by withholding from employees who did not sign individual contracts pay rises paid to those who did sign was not by itself capable of supporting a finding that the employers' purpose was to prevent or deter those who did not sign from being members of a union or to penalise them for being such members. It followed that the employers' purpose had not been shown to be in contravention of s 23(1) of the 1978 Act (see p 102 j, p 111 g to p 112 a, p 114 a to d, p 115 e to h, p 117 c g to j, p 118 g h and p 119 d, post).

Notes

For protection of trade union membership and activities, see 16 Halsbury's Laws (4th edn reissue) para 101.

For the Employment Protection (Consolidation) Act 1978, ss 23, 153, see 16 Halsbury's Statutes (4th edn) (1990 reissue) 253, 378.

Cases referred to in opinions

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58, [1967] 3 WLR 932, HL.

Discount Tobacco and Confectionery Ltd v Armitage [1990] IRLR 15, EAT.

[1995] 2 All ER 100 at 102

Farrell v Alexander [1976] 2 All ER 721, [1977] AC 59, [1976] 3 WLR 145, HL.

National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641, CA.

Appeal

Associated Newspapers Ltd v Wilson

Associated Newspapers Ltd (the employer) appealed from the decision of the Court of Appeal, Civil Division (Dillon, Butler-Sloss and Farquharson LJJ) ([1994] ICR 97) delivered on 30 April 1993 allowing the appeal of the employee, Mr David Wilson, from the decision of the Employment Appeal Tribunal (Wood J and Mr A C Blyghton; Mr J A Powell dissenting) ([1992] ICR 681) delivered on 25 June 1992 allowing the employer's appeal from the decision of an industrial tribunal sent to the parties on 22 October 1990 upholding the complaint lodged by the employee that the employer had infringed his right not to have action taken against him short of dismissal thereby contravening s 23(1) of the Employment Protection (Consolidation) Act 1978. The facts are set out in the opinion of Lord Bridge.

Associated British Ports v Palmer and ors

Associated British Ports (the employer) appealed from the decision of the Court of Appeal, Civil Division (Dillon, Butler-Sloss and Farquharson LJJ) ([1994] ICR 97) delivered on 30 April 1993 allowing the appeal of the employees, Mr T Palmer, Mr B Stedman and Mr A Wyeth, from the decision of the Employment Appeal Tribunal (Wood J and Mrs J Chapman; Ms B Dean dissenting) ([1993] ICR 101) delivered on 13 October 1992 allowing the employer's appeal from the decision of an industrial tribunal sent to the parties on 20 January 1992 upholding the complaint lodged by the employees that the employer had taken action against them short of dismissal in contravention of s 23(1) of the Employment Protection (Consolidation) Act 1978. The facts are set out in the opinion of Lord Bridge.

Patrick Elias QC and Nigel Giffin (instructed by R V Pearce) for Associated British Ports.

Jeffrey Burke QC and Peter Clark (instructed by Pattinson & Brewer) for Mr Palmer, Mr Stedman and Mr Wyeth.

Nicholas Underhill QC and Brian Napier (instructed by Farrer & Co) for Associated Newspapers Ltd.

John Hendy QC and Jennifer Eady (instructed by Stephens Innocent) for Mr Wilson.

16 March 1995. The following opinions were delivered.

Their Lordships took time for consideration.

LORD KEITH OF KINKEL.

My Lords, for reasons given in the speech to be delivered by my noble and learned friend Lord Bridge of Harwich, which I have read in draft and with which I agree, I would allow these appeals.



LORD BRIDGE OF HARWICH.

My Lords, the two appeals before the House arise out of two distinct proceedings instituted by originating applications before two different industrial tribunals whose decisions were the subject of separate appeals to the Employment Appeal Tribunal: Associated Newspapers

[1995] 2 All ER 100 at 103

Ltd v Wilson [1992] ICR 681 and Associated British Ports v Palmer [1993] ICR 101. The appeals from the decisions of the Employment Appeal Tribunal were heard together by the Court of Appeal ([1994] ICR 97) because they appeared to give rise to similar, albeit not identical, issues. The judgments in the Court of Appeal, quite rightly, address each appeal separately. Before your Lordships' House, however, a point of law has been taken which, for reasons which I will explain, was not open in the courts below. The determination of this point, on the conclusion I have reached, is decisive of both appeals. Accordingly, the course I propose to take in setting out this opinion is, first, to summarise, as briefly as I may, the facts and the course of the litigation in each case; secondly, to address the new point of law; thirdly to add some observations on the other issues which were canvassed in the proceedings below and before your Lordships.

Associated Newspapers Ltd v Wilson

For many years before 1989 the employers, Associated Newspapers Ltd, publishers of the Daily Mail, the Mail on Sunday and the Evening Standard, had employed their staff of journalists below a certain level in the editorial hierarchy on the terms of various collective agreements with the National Union of Journalists (the NUJ) whereunder rates of pay and other terms and conditions of employment were determined by negotiations between the employers and the union from time to time. In 1989 there was in force a 'house agreement' between the employers and the NUJ chapels representing employees in the Associated Newspapers group. The editors of the three titles were anxious that the employers should terminate collective bargaining under the house agreement and enter into individual contracts with each journalist. In due course the management gave notice to determine the house agreement with effect from 1 April 1990 which, it is accepted, they were lawfully entitled to do. They invited all those employed on the terms of the house agreement to sign individual contracts. There was some negotiation with the union as to the terms and conditions of employment to be set out in a handbook which would be incorporated in each individual contract and in the event it is common ground that, as between each individual employee and the employers, these did not differ in any significant way from the terms and conditions of employment which were currently in force under the house agreement immediately prior to its termination. But the employers offered to all those who were willing to sign individual contracts before a certain date a pay increase of 4·435% backdated to 1 October 1989. Those who were unwilling to sign continued in employment, effectively on the same terms as before, but they were told they could not expect, and they did not receive, any increase in pay until the next review of salaries on 1 October 1990.

The appellant, who was joint father of the chapel of the NUJ, was one of the small minority of employees who refused to sign an individual contract. In April 1990 he applied to an industrial tribunal complaining that the employers had infringed his rights under s 23(1) of the Employment Protection (Consolidation) Act 1978. That subsection, as in force at the material time (as amended by the Employment Act 1988, s 33(2) and Sch 4), provides:

'... every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of--(a) preventing or deterring him from being or seeking to

[1995] 2 All ER 100 at 104

become a member of an independent trade union, or penalising him for doing so; or (b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.'

The appellant claimed, inter alia, that by omitting to pay him the 4·435% pay rise paid to those who signed individual contracts, the employers had contravened s 23(1)(a). He succeeded in that claim before the industrial tribunal who made a declaration in his favour and adjourned the question of compensation. Associated Newspapers appealed to the Employment Appeal Tribunal ([1992] ICR 681) who allowed the appeal by a majority in a judgment delivered by Wood J, but this decision was unanimously reversed by the Court of Appeal (Dillon, Butler-Sloss and Farquharson LJJ).

Associated British Ports v Palmer

What happened between the employers, Associated British Ports, and their manual grade employees at Southampton was very similar, save in one respect, to what had happened between Associated Newspapers and their employed journalists. Prior to 1981 the rates of pay and other terms and conditions of employment of this group of employees were determined by collective bargaining between the employers and the National Union of Rail, Maritime and Transport Workers (the NURMTW). But in February 1991 the employers offered all these employees the alternative of entering into individual contracts with effect from 1 March 1991 or of continuing under the existing regime of employment on whatever terms were agreed collectively between the employers and the NURMTW. The inducement to choose the former alternative was an offer made to each individual of a significant increase in pay under his new contract. The majority accepted this offer and the proportionate increases in their rates of pay from 1 March 1991 were substantially greater than the increases achieved by the NURMTW in negotiation for that year's pay round on behalf of those who had opted to continue to have their rates of pay determined by the collective bargaining machinery. Three of the latter category, Messrs Palmer, Stedman and Wyeth, made applications to the industrial tribunal alleging infringements of their rights under s 23(1) of the 1978 Act and, like the applicant in Associated Newspapers Ltd v Wilson, they succeeded under s 23(1)(a) and were awarded compensation. The employers appealed to the Employment Appeal Tribunal ([1993] ICR 101) which again allowed the appeal by a majority in a judgment delivered by Wood J, and an appeal from this decision was heard together with the appeal in Associated Newspapers Ltd v Wilson and allowed by the Court of Appeal.

The employers in both cases now appeal by leave of your Lordships' House.

The new point of law

Section 153(1) of the Act of 1978 provides:

'In this Act, except so far as the context otherwise requires--"act" and "action" each includes omission and references to doing an act or taking action shall be construed accordingly ...'

[1995] 2 All ER 100 at 105

The courts below were bound by authority to accept that the application of this definition to s 23(1) has the effect that, if an employer confers a benefit on employee A which he withholds from employee B, the omission to confer the benefit on B may, if the circumstances warrant such a finding, amount to 'action (short of dismissal) taken against' B for one of the purposes prohibited by s 23(1), irrespective of the question whether B had any reasonable expectation of receiving that benefit. This proposition is established by the decision of the Court of Appeal in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641. In that case the board employed miners belonging to rival unions, the National Union of Mineworkers (the NUM) and the Union of Democratic Mineworkers (the UDM), at the same colliery. The board agreed to pay increased wages to members of the UDM but not to members of the NUM. On application by members of the NUM, the industrial tribunal held that withholding the increase from the applicants was an 'omission' amounting to 'action (short of dismissal) taken against' them for the purpose of penalising them for being members of the NUM and thus was a contravention of s 23(1)(a). This decision was upheld by the Court of Appeal by a majority (Nicholls and Bingham LJJ; May LJ dissenting). May LJ said ([1987] 3 All ER 582 at 590, [1987] ICR 641 at 651):

'There must at the least have been some obligation to pay or some expectation of receipt to enable one to categorise the non-payment of UDM rates to these appellants as an "omission" on the part of the board to make such payments.'

The majority view was expressed by Nicholls LJ, where he said ([1987] 3 All ER 582 at 595, [1987] ICR 641 at 656):

'For an act to constitute "action" within s 23 there does not need to be any reasonable expectation by the employee that the employer would not so behave. This being so, I see no justification for adding this requirement as a gloss on the language of the statute in the case of an "omission". To be within s 23 the conduct complained of has to have been done "for the purpose of [etc]". If it is for one of the requisite purposes that an employer omits to do something vis-à-vis the complainant employee as an individual then, whatever is the nature of the omission, it is impermissible.'

The novel question, raised for the first time before your Lordships, is whether the extended meanings of the word 'action' and of the phrase 'taking action' provided by s 153(1) are properly to be applied to s 23(1) or whether this is a case where 'the context otherwise requires'. The crucial phrase to be construed in s 23(1) is 'the right not to have action ... taken against him'. If this phrase is to be construed as embodying the extended meaning, one must first expand the language so as to include the verb 'omit' or the noun 'omission' to see how it reads. The attempt to do this grammatically without substantially recasting the phrase and introducing additional words at once exposes the difficulty. If the concept of taking action against some person is to embrace the concept of omitting to act, the omission must be an omission to act in that person's favour. I cannot believe that any competent Parliamentary draftsman, intending that an omission by an employer to take action in favour of an employee should have the same consequences as positive action taken against him, would fail to spell out the circumstances in which the obligation to take action in favour of the employee was to arise. Otherwise he creates an obvious

[1995] 2 All ER 100 at 106

ambiguity, as the difference of judicial opinion in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641 well illustrates. To put it no higher, the question whether s 23(1) should be rewritten in some way so as to spell out expressly the meaning of 'action' as including omission, or whether the context requires that the definition be not applied, gives rise to a 'real and substantial difficulty' in the interpretation of the statute 'which classical methods of construction cannot resolve' and thus entitles us to go behind the consolidating 1978 Act to derive whatever assistance we can in resolving the difficulty from the legislative history (see Farrell v Alexander [1976] 2 All ER 721 at 726, [1977] AC 59 at 73 per Lord Wilberforce).

The previous Acts consolidated by the 1978 Act included the Trade Union and Labour Relations Act 1974 and the Employment Protection Act 1975. The definition of 'act' and 'action' now found in s 153(1) of the 1978 Act was previously in s 30(1) of the 1974 Act but did not appear anywhere in the 1975 Act. Section 23 of the 1978 Act, however, re-enacts s 53 of the 1975 Act. Thus, prior to the 1978 consolidation, there was no question of applying any definition giving an extended meaning to the word 'action' in the context in which we now have to construe it.

In Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58 one of the issues to be determined was whether the word 'property' in s 56(1) of the Law of Property Act 1925, which is a consolidation Act, should be read in the extended sense given to it by the definition section, s 205, which provides:

'(1) In this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say ... (xx) "Property" includes any thing in action, and any interest in real or personal property ...'

Lord Reid reminded the House ([1967] 2 All ER 1197 at 1202, [1968] AC 58 at 73):

'it is the invariable practice of Parliament to require from those who have prepared a consolidation Bill an assurance that it will make no substantial change in the law and to have that checked by a committee. On this assurance the Bill is then passed into law, no amendment being permissible.

Lord Reid pointed out that s 56(1) of the 1925 Act was obviously intended to replace s 5 of the Real Property Act 1845 (8 & 9 Vict c 106) which applied only to real property, and he concluded ([1967] 2 All ER 1197 at 1204, [1968] AC 58 at 77):

'By express provision in the definition section a definition contained in it is not to be applied to the word defined if in the particular case the context otherwise requires. If application of that definition would result in giving to s. 56 a meaning going beyond that of the old section, then in my opinion the context does require that the definition of "property" shall not be applied to that word in s. 56. The context in which this section occurs is a consolidation Act. If the definition is not applied the section is a proper one to appear in such an Act, because it can properly be regarded as not substantially altering the pre-existing law; but if the definition is applied the result is to make s. 56 go far beyond the pre-existing law. Holding that the section has such an effect would involve holding that the

[1995] 2 All ER 100 at 107

invariable practice of Parliament has been departed from per incuriam, so that something has got into this consolidation Act which neither the draftsman nor Parliament can have intended to be there.'

By parity of reasoning, if the definition of 'action' in s 153(1) of the 1978 Act is applied to s 23(1), not only do we encounter the grammatical difficulty to which I have already referred, but we must also conclude that a consolidation Act has substantially altered the pre-existing law in a way that neither the draftsman nor Parliament can have intended. It seems to me plain that both the draftsman of the consolidation Bill and the committee who approved it must have been satisfied that the definition of 'act' and 'action' taken from the 1974 Act were excluded by the context of the phrase 'the right not to have action taken against him' in s 53 of the 1975 Act.

Counsel for the employees in the Associated British Ports v Palmer appeal sought to surmount this hurdle by submitting that the policy of the relevant employment legislation has consistently outlawed discrimination in any form against employees on account of their union membership and that the language of s 23(1), even if not extended by definition to apply to omissions, should nevertheless be construed liberally as having the same effect as that attributed to it by the majority in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641. So far from supporting this submission it seems to me that a closer examination of the legislative history conclusively refutes it. The original enactment, which did indeed embody just such an anti-discrimination policy as that for which counsel now contends, was s 5 of the Industrial Relations Act 1971, which provided, so far as material:

'(1) Every worker shall, as between himself and his employer, have the following rights, that is to say,--(a) the right to be a member of such trade union as he may choose; (b) subject to sections 6 and 17 of this Act, the right, if he so desires, to be a member of no trade union or other organisation of workers or to refuse to be a member of any particular trade union or other organisation of workers; (c) where he is a member of a trade union, the right, at any appropriate time, to take part in the activities of the trade union (including any activities as, or with a view to becoming, an official of the trade union) and the right to seek or accept appointment or election, and (if appointed or elected) to hold office, as such an official.

(2) It shall accordingly be an unfair industrial practice for any employer, or for any person acting on behalf of an employer,--(a) to prevent or deter a worker from exercising any of the rights conferred on him by subsection (1) of this section, or (b) to dismiss, penalise or otherwise discriminate against a worker by reason of his exercising any such right ...

(4) Where an employer offers a benefit of any kind to any workers as an inducement to refrain from exercising a right conferred on them by subsection (1) of this section, and the employer--(a) confers that benefit on one or more of those workers who agree to refrain from exercising that right, and (b) withholds it from one or more of them who do not agree to do so, the employer shall for the purposes of this section be regarded, in relation to any such worker as is mentioned in paragraph (b) of this subsection, as having thereby discriminated against him by reason of his exercising that right.'

[1995] 2 All ER 100 at 108

A remedy for a person discriminated against in a way amounting to an 'unfair industrial practice' under this section was provided on complaint to an industrial tribunal under s 106.

It will be noted, first, that s 5 comprehensively outlaws discrimination against a worker on the ground of his membership of a union, non-membership of a union or participation in union activities, either by way of dismissal or by action short of dismissal; secondly, that discrimination which takes the form of an 'omission', ie of withholding from employee A a benefit conferred on employee B, is the subject of the elaborate, explicit and unambiguous formula which the draftsman has used in sub-s (4). The 1974 Act repealed the 1971 Act but re-enacted many of its provisions, subject to amendment, in Sch 1. In so far as s 5 of the 1971 Act was directed against a particular form of unfair dismissal, its effect was preserved by para 6(4) of Sch 1 to the 1974 Act and this in turn was re-enacted by s 58(1) of the 1978 Act (as amended by s 3 of the Employment Act 1982 and Sch 4 to the Employment Act 1988), which provides:

'... the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee--(a) was, or proposed to become, a member of an independent trade union, or (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or (c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member.'

But the 1974 Act provided no remedy to employees who were discriminated against in ways falling short of dismissal which would previously have infringed the rights conferred on them by s 5 of the 1971 Act.

The crucial question is whether, when s 53 of the 1975 Act reintroduced a measure of protection against action, short of dismissal, of the kind previously prohibited by s 5 of the 1971 Act, the draftsman intended it to extend to cover discrimination of the kind against which s 5(4) of the 1971 Act had been expressly directed. The language of this previous provision must clearly have been present to the draftsman's mind and, if his intention had been to achieve the same legislative consequence, it is, to my mind, inconceivable that he should not have used either the same language or language substantially to the like effect. In fact, as we have seen he did not even use the word 'discriminate' or adopt the extended definition of 'action' used in the 1974 Act. Finally, s 24(2) of the 1978 Act provides a time limit for presenting a complaint to an industrial tribunal under s 23 and the time is to run from 'the date on which there occurred the action complained of'. But nowhere in the Act do we find any provision analogous to those found, for example, in s 76(6) of the Sex Discrimination Act 1975 and s 68(7) of the Race Relations Act 1976, which make the kind of special provision which is needed, where there is a time limit for complaining to an industrial tribunal, as to the date from which time is to run when the subject of the complaint is an omission.

The line of reasoning which I have followed in the three foregoing paragraphs was discussed in the course of argument and was criticised as unduly literalistic. It was even submitted that the Labour government which introduced the 1975 Act could not have intended to provide less effective

[1995] 2 All ER 100 at 109

protection for trade union members than the 1971 Act. A purposive construction to resolve ambiguities of statutory language is often appropriate and necessary. But this is the first time I have heard it suggested that the policy of an enactment to be presumed from the political complexion of the government which introduced it may prevail over the language of the statute. The courts' traditional approach to construction, giving primacy to the ordinary, grammatical meaning of statutory language, is reflected in the Parliamentary draftsman's technique of using language with the utmost precision to express the legislative intent of his political masters and it remains the golden rule of construction that a statute means exactly what it says and does not mean what it does not say.

For all these reasons I find it quite impossible to hold that withholding from the applicants in these two appeals the benefits conferred on some of their fellow employees, whatever its purpose may have been, was capable of amounting to a contravention of s 23(1) of the 1978 Act. It follows that I would also overrule the decision of the Court of Appeal in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641.

The membership issue

Much of the argument in the courts below and in both appeals before your Lordships was directed to questions relating to the relevant purpose of the employers. It was less than clear in either case what precisely the industrial tribunal had found the employers' purpose to be, leaving it open to argument whether the tribunal had intended to find as a fact in favour of the applicants that the employers' purpose was to deter them from being '[members] of an independent trade union' or to penalise them for being such members and, if so, whether there was evidence to support such a finding. Having reached a conclusion on the new point which is decisive of both appeals, I do not find it necessary to go into these questions in any detail, but I think it appropriate to add some observations relating to one aspect of the approach of the courts below to the question of purpose in respect of a complaint under s 23(1)(a) of the 1978 Act.

Sections 11 to 16 of the 1975 Act embodied a complex statutory code, the details of which do not now matter, which enabled a trade union to obtain 'recognition' by an employer for the purpose of collective bargaining with him on behalf of its members. But these provisions were repealed by the Employment Act 1980 and since then an employer has been at liberty to decide for himself whether or not to enter into or to continue in force an agreement with a trade union providing for collective bargaining.

Whatever the purpose of Associated Newspapers may have been, having given notice to terminate their house agreement with the NUJ, in offering an inducement to employees to sign individual contracts before the notice expired, the only witness called by the employers before the industrial tribunal gave evidence that the management had no intention of deterring their employees from continuing as members of the NUJ; the industrial tribunal's decision does not indicate that they rejected this evidence and in fact the majority of the employees have continued to be members of the NUJ ever since.

In Associated British Ports v Palmer it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective bargaining umbrella and to deal in future directly

[1995] 2 All ER 100 at 110

with the employers over their terms and conditions of employment, but I can see nothing in the evidence recited in the industrial tribunal's decision to suggest that the employers were seeking to induce the employees to give up their union membership.

The industrial tribunal in Associated British Ports v Palmer, in reaching the conclusion that the employers' relevant purpose contravened s 23(1)(a) of the 1978 Act, relied expressly on Discount Tobacco and Confectionery Ltd v Armitage [1990] IRLR 15 which, they said, 'is authority for the proposition that there is no genuine distinction between membership of a union on the one hand and making use of the essential services which that union has to offer such as representation on the other'. This approach was analysed and criticised in the judgment of the Employment Appeal Tribunal ([1993] ICR 101 at 111-112). But in the Court of Appeal Armitage's case provided an important link in the chain of reasoning relied on to affirm the decisions of the industrial tribunals in both cases.

Mrs Armitage had been engaged on 1 February 1988 and was dismissed on 15 July 1988. She applied to an industrial tribunal, complaining that she had been dismissed by reason of her union membership in contravention of s 58(1) of the 1978 Act. The evidence showed that she had written to her employers on 23 May asking for a statement of her terms of employment but had received no reply. She had then invoked the assistance of her union representative who wrote on her behalf on 23 June complaining of the failure to answer her letter and of various other matters in regard to her terms of employment. The employers gave evidence before the industrial tribunal that Mrs Armitage was dismissed on the ground of her unsuitability or incapacity, but the industrial tribunal disbelieved this evidence and found in terms that she had been dismissed 'by reason of membership of an independent trade union' (see [1990] IRLR 15 at 16). On the employers' appeal the Employment Appeal Tribunal concluded that there was material to support this finding. In reaching this conclusion the following passage appears in the judgment delivered by Knox J (at 16):

'The evidence, therefore, in relation to union membership that was before the Industrial Tribunal, was that Mrs Armitage made use of her union membership by getting Mr McFadden to help in elucidating and attempting to negotiate the terms of her employment. He did not get very far in the latter because the dismissal supervened so soon but that, Mr West [counsel for the employers] accepted, was what in fact she did and the question for this Tribunal is whether on that evidence of union involvement, to use a neutral expression, it was possible for the Industrial Tribunal to reach the conclusion that her dismissal was for membership of the union. Mr West drew a distinction between membership of the union, on the one hand, and resorting to the services of a union officer to elucidate and negotiate the terms of employment, on the other, and he accepted that there was evidence of the latter but said that it did not or could not amount to evidence of the former, membership of the union. We find ourselves unconvinced of that distinction. In our judgment, the activities of a trade union officer in negotiating and elucidating terms of employment is, to use a prayer book expression, the outward and visible manifestation of trade union membership. It is an incident of union membership which is, if not the primary one, at any rate, a very important

[1995] 2 All ER 100 at 111

one and we see no genuine distinction between membership of a union on the one hand and making use of the essential services of a union, on the other. Were it not so, the scope of s. 58(1)(a) would be reduced almost to vanishing point, since it would only be just the fact that a person was a member of a union, without regard to the consequences of that membership, that would be the subject matter of that statutory provision and, it seems to us, that to construe that paragraph so narrowly would really be to emasculate the provision altogether.'

In the Court of Appeal Dillon LJ, with whose judgment Butler-Sloss and Farquharson LJJ agreed, relied on this passage in relation to both appeals. In addressing the appeal in Associated Newspapers Ltd v Wilson he said ([1994] ICR 97 at 110):

'But the decision on "purpose" is for the industrial tribunal and Discount Tobacco & Confectionery Ltd. v. Armitage ([1990] IRLR 15) is authority that an industrial tribunal is entitled to conclude robustly that an employee who has been dismissed or penalised for invoking the assistance of his or her union in relation to his or her employment has been dismissed or penalised for being a member of the union.'

I do not question the correctness of the Employment Appeal Tribunal's decision in Armitage's case. Once the industrial tribunal had rejected the employers' evidence as to their reason for Mrs Armitage's dismissal, it was an obvious inference that she had been dismissed because the employers resented the fact that she had invited the union to intervene on her behalf. In this narrow context the reasoning of Knox J may have been a legitimate means of refuting a particular argument advanced by counsel for the employers. But if the passage cited is held to establish as a general proposition of law that, in the context of ss 23(1)(a) and 58(1)(a) of the 1978 Act membership of a union is to be equated with using the 'essential' services of that union, at best it puts an unnecessary and imprecise gloss on the statutory language; at worst it is liable to distort the meaning of these provisions which protect union membership as such.

A union which has a collective bargaining agreement with employers is in a position to offer its members the service of negotiating their terms and conditions of employment. A union which has no such agreement with employers is unable to offer its members that service, but is able to offer them other important and valuable services. Thus, it cannot be said that the service of collective bargaining is an essential union service or that membership of a union unable to offer that service is valueless or insignificant. Accordingly, it seems to me that the reasoning of Knox J in Armitage's case could not properly be applied to the circumstances of the two cases with which we are concerned. Even if the construction put on s 23(1)(a) by the majority in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641 were correct, I do not think that in either of these cases the withholding by the employers from employees who did not sign individual contracts of the benefits conferred on those who did was by itself capable of supporting a finding that the employers' purpose was to deter those in the latter group from being members of a union or to penalise them for being such members.

Since drafting the foregoing opinion I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Lloyd of

[1995] 2 All ER 100 at 112

Berwick. He has examined what I have referred to as the membership issue and has analysed the findings of the industrial tribunals in both cases in greater detail than I have found it necessary to do. On this part of his speech I agree both with his reasoning and with his conclusions which I accordingly adopt as affording an additional ground for allowing both appeals.



LORD BROWNE-WILKINSON.

My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Bridge of Harwich.

For the reasons which he gives in dealing with the new point argued for the first time before your Lordships I am reluctantly forced to the conclusion that the decision in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641 was wrong. The statutory history makes it impossible to hold that the 'omission' to offer to employees who did not accept the proffered new contracts constituted 'action' against such employees in contravention of s 23(1) of the Employment Protection (Consolidation) Act 1978. I reach the conclusion with regret since, in my view, it leaves an undesirable lacuna in the legislation protecting employees against victimisation.

I prefer to express no view on the membership issue also discussed by my noble and learned friend. As at present advised I would not share his view on the issue but it is unnecessary to express any concluded view since the decision of this case does not turn on that point.



LORD SLYNN OF HADLEY.

My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bridge of Harwich and Lord Lloyd of Berwick.

As to the question whether it is right and possible to read s 23(1)(a) of the Employment Protection (Consolidation) Act 1978 as amended by the Employment Act 1988 as including an omission to act, I agree with the conclusions of Lord Lloyd of Berwick for the reasons he gives. In my opinion the judgments of the majority of the Court of Appeal in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641 should be followed. There was here an omission to act by failing to pay a salary increase to some employees when it could reasonably have been expected that, if salaries were increased, the increase would be paid in the same proportion to all employees doing the same work.

There remains the question whether what happened here was action, including an omission, short of dismissal--

'taken against him as an individual by his employer for the purpose of--(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so ...'

Associated Newspapers Ltd v Wilson

The National Union of Journalists (the NUJ) was recognised for many years by the employers, Associated Newspapers Ltd, for the purpose of collective bargaining as regards the terms and conditions of employment, on the basis of a 'house agreement'. That agreement was terminated by notice given on 8 November 1989 and with effect from 1 April 1990 the union no longer had any collective bargaining rights following its derecognition. All journalists who signed a new contract incorporating terms and conditions set out in a handbook issued by the employers received a pay increase of 4·435%. Most

[1995] 2 All ER 100 at 113

journalists did sign. Those who did not sign (including the applicant) did not receive the 4·435% pay increase. The handbook stated specifically that 'journalists are free to join or not to join a trade union'.

The applicant claimed essentially that the derecognition of the union, the employers' pressurising him to sign a new contract and failing to pay him the 4·435% increase when he did not, and the change in his other terms of employment constituted action or omission contrary to s 23(1)(a) of the 1978 Act.

The industrial tribunal found that the derecognition of the union was not such an action but that changing his terms and conditions and paying the 4·435% increase only to those who signed the contract and failing to pay it to those who did not sign did constitute such action. They continued, however:

'60. The Tribunal were satisfied that in the context of this case and on the facts we have found the [employers'] purpose was so to reduce the power of the union as to negate it totally. If this had not been their purpose they could have recognised the union for matters other than wage negotiations if they had so wished.

61. The Tribunal considered that the [employers] were fully aware that by depriving the union of any function in the workplace (save on Health and Safety) they were effectively rendering the union powerless and thus membership pointless.

62. The Tribunal did not consider that the [employers] could hide behind their right to de-recognise the union so as to deny successfully their ultimate purpose which was to effect the wholly foreseeable consequence of [deterring] individual journalists from being union members.'

They considered further that the non-payment of the 4·435% salary rise was 'a penalty meted out to those who refused to accept their action' (para 63), but that there was no evidence that the employers had done anything to prevent the applicant from taking part in trade union activities 'at an appropriate time' (para 64).

The tribunal's findings in paras 60 to 62 seemed to be based wholly on the effect of derecognition. Yet even if the purpose of derecognition was to deter individuals from being members of the union, the tribunal had already rejected derecognition as constituting action against an individual within the meaning of s 23(1)(a) of the 1978 Act.

The applicant in his case (para 16) seems to accept the distinction between derecognition and the other actions relied on since he says that the employers' purpose thus motivated a 'series of acts including derecognition of the NUJ and the ending of collective bargaining on the one hand, and on the other the issues of new contracts accompanied by the payment of a douceur'. He contends: 'In so doing [Associated Newspapers] was acting both against the union (by derecognition and the ending of collective bargaining) and against employees as individuals (by withholding the douceur) in order to try to achieve its overall purpose.'

Even though it seems to me that there may well be cases where an act on the surface directed to the union may amount to 'action ... taken against [an employee] as an individual', the present, where what is relied on is derecognition for collective bargaining purposes, is not such a case. The sole issue, therefore, is whether the failure to pay the increase to Mr Wilson, since he did not sign an individual contract, amounts to action taken against him as

[1995] 2 All ER 100 at 114

an individual for the purpose of 'preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so ...'

In my opinion, withholding an increase of salary from those who remain members of the union could amount to action forbidden by this subsection if the relevant purpose is established. In the present case at the end of the day I am not satisfied that it was so established. The aim of the derecognition was to ensure that contracts could be negotiated individually; that was achieved independently of and prior to the acceptance of the terms of the new contract and prior to the date when the appellants failed to pay the 4·435% increase to those who did not sign. Collective bargaining came to an end whether all or none of the journalists signed new contracts. The employers' case was that they required new contracts so as to make it clear what was the position after collective bargaining came to an end. Such a justification or 'purpose' may, as Mr Hendy submitted, have to be looked at critically if the consequence is likely to be a reduction in union membership but in this case I do not think that one should disregard the provision of the contract that journalists could belong to a union or the fact that many continued to do so. I do not consider that there was here evidence that the employers' purpose in paying a salary differential was to prevent or deter union membership even if derecognition in itself might make the union less attractive to members or to potential members.

Associated British Ports v Palmer

In this case it was accepted before the tribunal that, on the basis that 'action' included 'omission to act', there had been action taken against the applicants as individuals. It was contended, however, that the employers' purpose in taking such action was not to prevent or deter the applicants from continuing to be members of the union nor to penalise them for doing so.

The letter sent to the men involved offering a personal contract of employment stated:

'In offering personal contracts, the company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded ... If you choose to accept a new individual contract then the agreement with the trade unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a trade union and, in future, your pay will not be determined by the present negotiated wage ranges ... As part of your personal contract the company will pay you an increased wage from 1 March 1991 as advised to you in the attached personal letter; this new wage is inclusive of your pending March pay review.'

The tribunal accepted that the employers honestly believed that they could conduct their business more effectively if unhampered by the need to consult the union but they added (at para 10 of their decision):

'... but unfortunately for them they have failed to spot the missing link in the chain of causation. The reality is that their purpose was to penalise those who would not forgo Union representation by not conferring on

[1995] 2 All ER 100 at 115

them the benefits bestowed on those who were prepared to do so with the object of achieving greater flexibility. In other words the [employers] have confused purpose with objective. Put in another way if their purpose (persuading employees to abandon Union representation) succeeded they would have achieved their objective (flexibility).'

In this case, too, employees retained the right to membership of a trade union and the majority of those who accepted personal contracts remained members of the union. Those who accepted the personal contract, however, lost the right to representation by a trade union in their dealings with the employers. The distinction between this case and Associated Newspapers Ltd v Wilson is that here there was no total derecognition of the union for collective bargaining purposes but employees were given a choice as to whether they retained or gave up that representation.

Like Dillon LJ in the Court of Appeal ([1994] ICR 97), I do not consider that action 'preventing or deterring' someone from being a member of a trade union or penalising him for doing so is limited to action taken in respect of his status as a member--the fact that he has or wants to have a union membership card. It may include action to prevent or deter him from, or action penalising him for, exercising his rights as a member of a trade union. The exercise of such rights is not necessarily included in the phrase 'taking part in the activities' of a trade union, words more apt to cover such activities as attending union meetings or acting as an official of the union.

In the present case, however, the right to be represented in collective bargaining by the union was a right granted contractually by the employers which could be terminated on notice. Ceasing to recognise the union was not an action taken to prevent or deter the employees from exercising their rights as members of the trade union. The fact that in Associated British Ports v Palmer, unlike Associated Newspapers Ltd v Wilson, the workers had the option whether to go on being represented by the union or to accept a personal contract, did not mean that those who accepted a personal contract were being prevented or deterred from exercising their union rights or penalised for doing so.

In any event it does not seem to me that, having accepted that the reason that the employers needed flexibility and more efficient conduct of their business was an honest reason, the tribunal was entitled on the evidence to say that flexibility was their 'objective' rather than their 'purpose'. Their purpose and their objective were to achieve flexibility; and the means to achieve it were by offering a higher salary for those who were prepared to give up union representation.

Accordingly I agree that both appeals should be allowed.



LORD LLOYD OF BERWICK.

My Lords, I too would allow these appeals, but only on the alternative ground discussed by Lord Bridge of Harwich at the end of his speech. For reasons which I shall mention later, I consider that National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641 was correctly decided. I find nothing in the context of s 23(1) of the Employment Protection (Consolidation) Act 1978 which requires us to exclude the statutory definition contained in s 153(1), whereby 'action' includes 'omission' and references to taking action are to be construed accordingly. Thus in my view the withholding of the 4·435% pay rise in Associated Newspapers Ltd v Wilson from

[1995] 2 All ER 100 at 116

those who did not sign individual contracts of employment was action taken against them as individuals.

The remaining issue in Associated Newspapers Ltd v Wilson is whether that action was taken for the purpose of preventing or deterring them from 'being or seeking to become' members of the National Union of Journalists, or to penalise them for doing so. If the answer to this question is No, then the appeal must be allowed. For it is not suggested that the derecognition of the union was in itself action taken against them as individuals. It clearly was not. Nor does Mr Hendy QC rely on any other ground for supporting the industrial tribunal's decision. The sole question relates to the non-payment of the 4·435%.

As to this, it must be said, with regret, that the findings of the tribunal are obscure. In para 57 of their decision it is said that the employers' purpose was not in dispute, namely to end collective bargaining. So far, so good. The employers were entitled to bring collective bargaining to an end at any time. But the matter is not left there. Paragraphs 60 to 62 read:

'60. The Tribunal were satisfied that in the context of this case and on the facts we have found the [employers'] purpose was so to reduce the power of the union as to negate it totally. If this had not been their purpose they could have recognised the union for matters other than wage negotiations if they had so wished.

61. The Tribunal considered that the [employers] were fully aware that by depriving the union of any function in the workplace ... they were effectively rendering the union powerless and thus membership pointless.

62. The Tribunal did not consider that the [employers] could hide behind their right to de-recognise the union so as to deny successfully their ultimate purpose which was to effect the wholly foreseeable consequence of [deterring] individual journalists from being union members.'

These paragraphs seem to be directed to the wrong issue. They are concerned with the foreseeable consequences of derecognition. But the only question, as I have said, is what was the purpose of withholding the 4·435%. As to that, the findings are silent.

The only evidence as to the employers' purpose in withholding the 4·435% came from the group managing director, Mr Hardy. He said that he wanted as many members as possible to sign up so that everybody should know where they were. Over and over again he was asked in cross-examination whether it was not also a disguised attack on membership of the union. Over and over again he replied that it was not. He was not concerned with membership of the union; he was concerned only to get rid of collective bargaining.

It is not suggested that in giving these answers Mr Hardy was not expressing his honest opinion. His evidence appears to have been accepted by the tribunal at its face value. It is borne out by the terms of the handbook, which specifically preserves the right of employees to remain members of the union, as well as their right to be accompanied by a union representative when raising grievances. It is further borne out by the fact that the very great majority of those who accepted the 4·435% remained union members.

As for para 60 of the tribunal's decision, I have great difficulty in accepting the view of the Court of Appeal ([1994] ICR 97 at 109-110) that this should be treated as a finding in relation to the withholding of the 4·435%, because derecognition and the payment of the 4·435% were all 'part of one exercise'. In a sense this is true. But they were not conditional on each other. The

[1995] 2 All ER 100 at 117

employers had already given notice to determine the 'house agreement'. They were putting an end to collective bargaining, even if none of the members of the union had signed the new contracts. In those circumstances the obvious purpose of the new contracts was that given by Mr Hardy, namely to obviate any uncertainty or confusion arising out of the termination of collective bargaining, and to smooth the transition from the house agreement to the handbook. There is no need to look further. So I do not agree with the Court of Appeal that the finding in para 60 'should stand as a finding in relation to the purpose of the 4·435%'.

But even if I am wrong about that, there is no evidence on which the tribunal could find that '[the employers'] ultimate purpose' was to deter individual journalists from being or becoming union members. The tribunal seems to have relied on a remark of Sir David English that in two years he would prove that the trade union was not necessary and that the chapel would wither away. This is a very slender basis for the finding in para 62, for it could as well relate to the consequence of derecognition as the purpose.

In supporting the finding in para 62, the Court of Appeal was much influenced by the observations of Knox J in Discount Tobacco and Confectionery Ltd v Armitage [1990] IRLR 15, a decision which the court regarded as unquestionably correct. It may well have been correct on its facts. Having rejected the evidence given by Mrs Armitage's employers, the tribunal was entitled to infer that the real reason for her dismissal was that she was a member of the union and made use of the union's services to press her complaint. But, like Lord Bridge of Harwich, I cannot regard the case as authority for the broad proposition that membership of the union and making use of the union's services are in some way to be equated. In my view, s 23(1)(a) was intended to protect trade union membership as such, that is to say the right to associate as members of an independent trade union, just as s 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words 'or making use of the essential services of the union' in s 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as the same thing. They do not mean the same thing in s 23(1)(c). So why should they mean the same thing in s 23(1)(a)? I do not accept Knox J's view that this would reduce s 23(1)(a) to vanishing point (see [1990] IRLR 15 at 16). Unions may flourish even though they are not recognised for collective bargaining. In so far as the industrial tribunal relied on the broad statement in Armitage's case in reaching their 'robust' conclusion in para 62, they erred in law (see [1994] ICR 97 at 110 per Dillon LJ).

For the above reasons, which are substantially the same as those given by the majority of the Employment Appeal Tribunal ([1992] ICR 681) I would allow this appeal. It was for the employers under s 25(1) of the 1978 Act to show the purpose for which they took action against the applicant. This they did. There was no evidence on which the tribunal could find that the purpose was to deter the applicant from remaining a member of the union. Accordingly, the applicant has failed to show that he has a remedy under s 23(1)(a). It is not suggested that he has any remedy under s 23(1)(b).

I now turn to Associated British Ports v Palmer. The salient difference is, of course, that, whereas the employers in Associated Newspapers Ltd v Wilson were derecognising the union for all purposes, whether or not the members signed new contracts, the employers in Associated British Ports v Palmer offered their

[1995] 2 All ER 100 at 118

employees a choice. They could either sign the new contracts, in which case collective bargaining would cease so far as they were concerned, or, if they chose, they could continue to enjoy the advantages of collective bargaining as before. As in Associated Newspapers Ltd v Wilson the inducement to sign the new contracts was an immediate increase in pay. Mr Elias QC made the obvious point that if the compulsory termination of collective bargaining in Associated Newspapers Ltd v Wilson was not an infringement of s 23(1)(a), the employers in Associated British Ports v Palmer could hardly be in a worse position by offering a choice.

However, the findings of fact in Associated British Ports v Palmer are much clearer than in Associated Newspapers Ltd v Wilson. The case for the employers was that their purpose in offering an inducement to those who signed the new contracts was to achieve greater flexibility. They wished to introduce a system under which individual merit could be recognised and rewarded. In para 10 of their decision the industrial tribunal say:

'We accept that that is an honest expression of what the [employers] saw to be their purpose but unfortunately for them they have failed to spot the missing link in the chain of causation. The reality is that their purpose was to penalise those who would not forgo Union representation by not conferring on them the benefits bestowed on those who were prepared to do so with the object of achieving greater flexibility. In other words the [employers] have confused purpose with objective. Put in another way if their purpose (persuading employees to abandon Union representation) succeeded they would have achieved their objective (flexibility).'

Mr Elias argued that the industrial tribunal should have accepted the evidence of the employers. Greater flexibility was the purpose of their action; derecognition, whether total or partial, was but a means to that end.

The majority of the Employment Appeal Tribunal ([1993] ICR 101) accepted that argument. But on this issue I prefer the dissenting view of Ms Brenda Dean (now Baroness Dean of Thornton-le-Fylde), though not her conclusion. In the context of this case the distinction between means and ends is narrow and somewhat artificial. In my view, the industrial tribunal were entitled to hold that the true purpose of paying the extra to those who signed the new contracts was to persuade as many employees as possible to abandon union representation in wage negotiations.

But where does that lead? Union representation is not something to which, as individuals, they were entitled. They have the right not to have action taken against them for the purpose of deterring them from remaining members of the union. But the industrial tribunal made no finding in para 10, or elsewhere, that that was the employers' purpose. Nor would such a conclusion have been justified on the evidence. The power and the influence of the union might well be diminished if enough members opted for individual contracts. Membership of the union might thus become less attractive. Ms Dean speaks of the union 'wither[ing] on the vine' (see [1993] ICR 101 at 110). But it is Parliament, not the employers, that has, in this respect, made membership of the union less attractive by repealing ss 11 to 16 of the Employment Protection Act 1975.

The language of s 23(1)(a) must clearly bear the same meaning now as it did when it was first enacted as s 53 of the 1975 Act. It did not change its meaning when ss 11 to 16 of that Act were repealed. The applicants cannot, by giving s 23(1)(a) a meaning much wider than its terms justify, seek to restore rights

[1995] 2 All ER 100 at 119

which the unions thereby lost. In the course of giving the judgment of the Employment Appeal Tribunal Wood J said ([1993] ICR 101 at 113):

'Prior to the repeal of sections 11 to 16 of the Employment Protection Act 1975 by section 19(b) of the Employment Act 1980, a trade union had rights against an employer and therefore in order to ensure that an employer negotiate with a trade union there was no need for an employee to have rights additional to that of membership. It seems to us therefore that the legislature could not have intended that the words of section 23(1)(a), which derive from section 53 of the Act of 1975, should include those additional rights by implication in the phrase "being a member." There is no phraseology which refers to the exercising of rights of membership and in any event such rights would exist between members and not with reference to a third party--the employer.'

I agree with that reasoning. In so far as it conflicts with the broad proposition stated by Knox J in the Armitage case, I prefer the reasons of the Employment Appeal Tribunal in the instant case. There is no evidence on which the tribunal could have found that the employers' purpose was to prevent or deter the applicants from remaining members of the union. Accordingly, I would allow the employers' appeal in Associated British Ports v Palmer as well as Associated Newspapers Ltd v Wilson.

I return now to the preliminary question, raised by your Lordships in the course of the hearing, whether the withholding of the 4·435% in Associated Newspapers Ltd v Wilson and of the pay increase in Associated British Ports v Palmer was 'action ... taken' against the applicants within the meaning of s 23(1)(a). On this I regret that I have reached a different conclusion from Lord Bridge of Harwich.

It is said that to read 'action' in s 23(1)(a) as if it included 'omission' presents a grammatical difficulty, and that therefore the context of s 23(1)(a) excludes the application of the definition in s 153(1). I accept at once that the inclusion of omissions within the scope of s 23(1)(a) means that the phrase has to be substantially recast. It is not possible to substitute one word for the other. For you cannot 'take' an omission. But this is no bar to the application of s 153. It was foreseen by the draftsman. That is why it is provided by s 153 that 'taking action' is to be 'construed accordingly'. I cannot easily visualise a context in which 'taking action' has to be construed so as to include an omission which would not involve substantial recasting. Take, for example, s 29(5) of the Trade Union and Labour Relations Act 1974, which provides:

'An act, threat or demand done or made by one person or organisation against another ... shall ... be treated for the purposes of this Act as being done or made in contemplation of a trade dispute ...'

By s 30(1) 'act' includes omission and 'references to doing an act ... shall be construed accordingly'. If s 29(5) is to be construed so as to include omissions, as it clearly must in the light of the definition in the next following section, it requires no less redrafting than s 23(1)(a). There will always be some difficulty in finding the neatest form of words to incorporate the extended definition. But that difficulty is no greater in the case of s 23(1)(a) than in the case of s 29(5) of the 1974 Act. It is inherent in the drafting technique. So I do not accept that the context requires us to exclude the definition because of any grammatical difficulties.

[1995] 2 All ER 100 at 120

Is there anything else in the wider context which requires us to exclude the definition? I think not. Indeed, it would create a surprising gap in the protection afforded by s 23(1)(a) if 'action' did not include 'omission'. In National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641 the industrial tribunal construed 'action' as including 'omission' in accordance with the definition. It never occurred to the employers to argue in that case, whether in the Employment Appeal Tribunal, or in the Court of Appeal, that the definition did not apply. It was common ground that it did. The dispute in National Coal Board v Ridgway on which the Court of Appeal was split was not whether the definition applied but whether, applying the definition, a failure to act could constitute an omission in the absence of some obligation to act, or expectation of action. The difference of judicial opinion in that respect does not indicate any difficulty in applying the definition as such. It would arise in whatever context the definition came to be applied. So I see no reason not to apply the definition on that ground.

A further argument was that Parliament has made no express provision in s 24(2) for the commencement of the three-month period for making complaints in the case of omissions. But assuming an omission can be identified at all, as it must be if there is to be a complaint under s 23, I can see no great practical difficulty in determining when that omission occurred. So the absence of an express provision does not assist in the construction of s 23(1)(a).

My conclusion is that the context does not require us to exclude the definition from s 23(1)(a). The only difficulty is, as I have said, in choosing the shortest form of wording to incorporate the definition. But that is not the sort of difficulty which Lord Wilberforce had in mind in Farrell v Alexander [1976] 2 All ER 721 at 726, [1977] AC 59 at 73. The intention of Parliament in enacting the definition is clear enough. On the face of it, the definition applies to s 23(1)(a), and there is nothing in the context to exclude it. I can therefore see no justification for having resort to the legislative history.

As for the difference of judicial opinion in National Coal Board v Ridgway [1987] 3 All ER 582, [1987] ICR 641, I have no doubt that we should prefer the view of the majority, although there may not in practice be much difference between the two views. Once accepting, as May LJ ([1987] 3 All ER 582 at 590, [1987] ICR 641 at 651) accepted, that there may be an omission where there is a reasonable expectation of action, it is a short step to holding that such an expectation arises where a benefit is paid to some employees but not others if they are all doing the same job (see [1987] 3 All ER 582 at 605, [1987] ICR 641 at 670 per Bingham LJ).

On the facts of National Coal Board v Ridgway the majority upheld the finding of the tribunal that the purpose of the employers was to deter miners from being members of the National Union of Mineworkers. But the contrast between Mr Hunt's evidence for the employers in that case, and Mr Hardy's evidence in Associated Newspapers Ltd v Wilson could not be more marked. Mr Hunt's answers were evasive, both in chief and in cross-examination (see [1987] 3 All ER 582 at 598, [1987] ICR 641 at 660 per Nicholls LJ). It is not surprising that his evidence was rejected by the tribunal. Mr Hardy's evidence by contrast was direct and to the point. The substance of his evidence was not criticised by the tribunal, and it was accepted that he was telling the truth.

I turn last to consider briefly what would be the position if, contrary to my view, it were permissible to look at the legislative history.

[1995] 2 All ER 100 at 121

When the Industrial Relations Act 1971 was repealed by the 1974 Act, the provisions of the former Act relating to unfair dismissal were largely re-enacted in Sch 1. Mr Elias accepted that an employee could be dismissed by an omission, for example the failure to renew a fixed-term contract of employment (see para 5(2)(b) of Sch 1). This accords with the extended definition in s 30(1) of the 1974 Act.

For some reason the 1974 Act did not re-enact s 5(2) of the 1971 Act, whereby it was made an unfair industrial practice to prevent or deter a worker from exercising his rights under s 5(1) or to dismiss, penalise or otherwise discriminate against him for exercising such rights. These rights included the right to be a member of the trade union of his choice. It was not until the 1975 Act that Parliament re-enacted the substance of s 5. But the approach was very different. The concept of unfair industrial practice was abandoned. Instead, s 53 substituted the right of an employee not to have action short of dismissal taken against him for the purpose of preventing or deterring him from exercising the rights formerly contained in s 5(1) of the 1971 Act. Section 126(3) of the 1975 Act provided:

'... expressions used in the provisions of this Act relating to unfair dismissal and in provisions of the 1974 Act relating to unfair dismissal have the same meaning in this Act as in that Act.'

So an employee could be dismissed by omission under the 1975 Act, just as he could under the 1974 Act. It is true that the extended definition contained in s 30(1) was not expressly applied to cases of action short of dismissal. But there may have been several reasons for this. It may have been thought that since an employee can be dismissed by an omission, that is to say, by failing to renew his employment, action short of dismissal in s 53 must necessarily also include an omission to act. It may simply have been an oversight. But, whatever the reason, I do not find it surprising that the draftsman of the consolidating Act passed in 1978 felt justified in applying the extended definition to both cases alike; in doing so he may well have thought (whether rightly or not) that he was not substantially changing the law.

The case is thus very different from Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58 where, as Lord Reid pointed out, the application of the definition in s 205 of the Law of Property Act 1925 would have taken s 56(1) 'far beyond the pre-existing law' (see [1967] 2 All ER 1197 at 1204, [1968] AC 58 at 77). Lord Guest described the change as fundamental. He said: 'I cannot believe that Parliament intended to make so fundamental a change in a consolidating Act ...' (see [1967] 2 All ER 1197 at 1210, [1968] AC 58 at 85). If the 1978 Act made a change in the law at all, which may be doubted, it certainly did not make a change which could be regarded as fundamental. So even if one has regard to the legislative history in this case, it throws but little light on the meaning of s 23(1)(a).

The final argument turned on s 5(4) of the 1971 Act, which contained a specific provision that the granting of a benefit to one or more workers, and the withholding of the same benefit from others, should be regarded as discrimination for the purposes of s 5(2). It was said that, since the draftsman must have had the language of s 5(4) before him when he drafted s 53, and since he did not adopt substantially the same language, he must have intended to give s 53 a narrower meaning. But this overlooks the fact that the whole approach in s 53 is different. The draftsman may well have thought that, with

[1995] 2 All ER 100 at 122

the abandonment of the concept of unfair industrial practice, and the substitution of action short of dismissal, specific reference to discrimination was no longer required.

For the reasons I have mentioned, I would reach the same conclusion even if it were permissible to look at the legislative history. But I prefer to put my decision on this part of the case on the basis that the words of the consolidating Act are clear and unambiguous and must be given effect according to their meaning. It follows that in both appeals the employers took action against the applicants as individuals. But in both cases the applicants fail because the action was not for the purpose of preventing or deterring them from remaining members of the union.

Appeals allowed.

Celia Fox Barrister