Employment Appeal Tribunal
Section 14(5) Employment Rights Act 1996 prevents unlawful deduction claims being brought in the ET where the deduction in question was made on account of the claimant having taken part in a strike or other industrial action.
Mr Norris had long wanted to take himself off a list of Crew Managers available to act up to the next higher grade, but his employer took the view that he was contractually obliged to remain on the list and do the acting up until they agreed to his coming off.
Some months later, his union called for industrial action short of a strike, including refusing to take on new acting up duties, in support of a dispute over proposed changes to shift patterns. Mr Norris, learning at around the same time that he would not face disciplinary action if he refused to act up but would instead suffer a reduction in his wage of 20%, stopped acting up when asked. After the industrial action ended, he continued to refuse to act up and to suffer the consequent reduction in pay, taking the view that the deductions were unlawful and that he would sue for them to be made good. The ET found as a fact that in doing so he was not acting in concert with anyone else.
In an ET claim multiple claimants complained of pay deductions during the period of the industrial action. Mr Norris additionally complained of the continuing deductions. All claims were dismissed at a PHR as being precluded by s. 14(5). Mr Norris appealed to the EAT in respect of that decision in so far as it related to the continuing deductions after the industrial action had ended, on the basis (1) that the ET had been perverse to characterize that conduct as a continuation of the industrial action designed to coerce his employer into changing his terms and conditions; and (2) that in any event a worker cannot “take part in other industrial action” if he is acting alone, despite a much criticized EAT decision holding to the contrary in Lewis and Britton v E Mason & Sons  IRLR 4.
The judgment of the EAT (Underhill J) is awaited.
William Meade (Senior Clerk)