Industrial tribunal's jurisdiction to consider reduction of compensation in unfair dismissal selective re-engagement cases for contributory fault.

 

Employer's appeal against the decision of the Court of Appeal allowing the appeal by 79 bus drivers against EAT ruling that the industrial tribunal hearing their claim for discriminatory non-engagement because they were not re-engaged after industrial action while other strikers were, had jurisdiction to find contributory conduct.

 

HELD: Section 73(7B) and s.74(6) of the Employment Protection (Consolidation) Act 1978, as amended by the Employment Act 1982, since re-enacted as s.238 of the Trade Union and Labour Relations (Consolidation) Act 1992 fell to be applied as enacted without any implication that would apply to the failure to re-engage, rather than (or in addition to) dismissal. Sense could be made of the whole legislative scheme without the need to import words that Parliament has not itself used. The EAT decisions in Courtaulds Northern Spinning Ltd v Moosa (1984) and TNT Express (UK) Ltd v Downes (1994) were correct. Individual blameworthy conduct additional to or separate from the mere act of participation in industrial action must in principle be capable of amounting to contributory fault but the difficulty in the present case was that when one came to the final stage of deciding whether the dismissed employees' compensation should be reduced, the fairness or unfairness of the selective re-engagement must be ignored. At this point the argument of the employer failed because of the sheer impossibility of the task of allocating the blame for the industrial action to any individual complainant, the more so since the collective blame for the industrial action was shared by those who were re-engaged. This was a consequence which Parliament could never have intended. The conclusion was that any reduction in the compensation of an individual employee should be and could only be, such as was 'just and equitable'. Accordingly the appeal would be dismissed but with little sense of satisfaction about the justice of the result, or the state of the law which has given rise to it. This was not a case of deliberate victimisation by the employers but they were being required to pay just as much compensation as if it had been. This area of the law would benefit from the attention of the Law Commission.

 

Appeal dismissed.

 

Jeremy McMullen QC and Paul Rose instructed by Dickinson Dees, Newcastle upon Tyne for the appellant.