England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
Appeal by Joseph Langston from order of the National Industrial Relations Court on 27th February, 1973.

		Royal Courts of Justice.
		19th December 1973

THE MASTER OF THE ROLLS: Joseph Langston is playing a lone hand. He is at odds with the other workers in the factory. He claims two rights of fundamental importance: first, the right not to be a member of a trade union or of an organisation of workers. Second, the right to work at his job. His fellow workers deny him these rights. If he insists upon them, they threaten to walk out. They will not work with him. He does not want this to happen. He tells us that he is not going to push his claims so far as to shut down the factory. Rut he does want to have his rights declared by the Courts of Law. To this end he has gone to the Industrial Tribunal and the Industrial Court, he has complained to them. But so far he has had little success. The Industrial Court says it has no jurisdiction to entertain his complaint. He appeals to this Court.

Mr. Langston came before us in person. He produced papers which he asked us to read. From them I will tell his case as he would have it understood. He is by trade a welder. He has worked for years in the car assembly plant of Chryslers at Ryton, near Coventry. He joined a trade union in 1927 when he was 14. Now he is 60. He has paid his union contributions all his life. For about 12 months during the war he was himself a shop steward. He has for a long time been of opinion that every man should be free to belong to a trade union or not, as he wishes. No one should be compelled to join. He objects to the "closed shop". He has opposed it by all means in his power. In 1968 he wrote to Mr. Edward Heath, the leader of the opposition, about it. He produced to us the reply, which said:-

"We support the right of any man not to join a trade union if his conscience or sincere convictions so dictate.

To ensure this basic right to work the Code of Good Practice will lay down conditions which snould apply before any agreement is reached in principle for 100% trade union membership. These will include specific safeguards for non-unionists"....

In May 1970 Mr. Langston clashed with The shop stewards at Chryslers about their "closed-shop policy". They were checking the cards of all the workers to see if they were members of the union. He had not got his with him. A shop steward said to him:

"If you haven't got your Union Card with you tomorrow, we will send you out to get it: and if you haven't got one, you will stay out for good."

THE RIGHT NOT TO BE A MEMBER OF A TRADE UNION

Until recently Mr. Langston had no means of asserting his rights. But on 28th February, 1972, the Industrial Relations Act, 1971, came into force. It contained specific provisions that a man should have the right not to be a member of a trade union or other organisation of workers, see section 5(1)(b)(2) and 106(1).

On reading the Act or the summaries of it, Mr. Langston in July 1972 submitted his first application to the Central Office of the Industrial Tribunals. He asked for a determination of the question whether he had a right as an Individual to be or not to be a member of a trade union. He cited his employers, Chryslers, as respondents. He also cited all the trade unionists and the management executives and the directors employed at that factory. This application did not succeed. He was told that he had no cause of action against Chryslers as he was still employed by them: and that his application was incorrect as he had not given the names and addresses of the trade unionists.

So on 24th August, 1972, he submitted a second application to the Tribunal. He again claimed determination of his right as an individual not to belong to a trade union without intimidation. But this did not succeed either. He was told that it did not sufficiently specify the trade union against which he wanted to proceed. He was also told it would seem by a conciliation officer that, in order to obtain a hearing before a tribunal, he must first of all resign his membership from the trade union. He was unwilling to do this but felt he must do so in order to get his case heard.

So he resigned from the union, and on 10th October, 1972 submitted to the Tribunal a third application. He asked the Tribunal to determine whether or not he had a right not to belong to a trade union. He cited as respondent the Amalgamated Engineering Workers Union and three officials - Mr. Walton, Mr. Parks and Mr. Conway.

Before this application was heard, however, he got into trouble with the other workers. No doubt they found out that he had resigned from the union. They objected to working with him, and told the management so. Chryslers did not want trouble. So on 30th October, 1972 Chryslers suspended him on full pay. He no longer went to work but went each week to Chryslers to draw his pay.

On 28th December, 1972, his application came for hearing before the Industrial Tribunal at Birmingham. It decided in his favour. The Tribunal pointed out that the Amalgamated Engineering Workers Union was not registered and was, therefore, not a "trade union" and could not be the subject of an agency shop agreement or a closed shop agreement. So the Tribunal held that "Mr. Langston has the right not to belong to the Amalgamated Engineering Workers Union if he so desires and we so pronounce."

It appears now that that Tribunal ought not to have made that declaration. The reason is because the employers were not made a party to the proceedings: and in their absence the Tribunal had no jurisdiction to make it, see section 5(2) and 106(1)(3). This was pointed out later by the Industrial Court.

Anyhow it was a Pyrrhic victory. As soon as this declaration became known to the other workers, they were greatly incensed. On the next day, Friday, 29th December, 19?2, Mr. Langston went to the factory to get his wages. He was, of course, still collecting them, although suspended from work. The other workers were bitterly hostile to him. There was a mass demonstration. 500 workers pelted him with stones, tin cans and mud. They hurled abuse at him as he left the factory. The convenor, Mr. Walton, told the newspapermen:

"The men on the snap floor have made it quite clear that he will not be allowed back into the plant."

THE RIGHT TO WORK

Mr. Langston was very upset about this. He felt that he had a right to work, and that this might have been infringed by the threats made by Mr. Walton. So he determined to seek relief. This time he did not go to the Industrial Tribunal. He went to the National Industrial Relations Court. On 25th January, 1973; he made a complaint against Mr. K. Walton, the Works Convenor of the union at Chryslers. He made his own application in his own words and in his own handwriting, as follows:

"I am refused access to my normal job of work at my normal place of employment by the threats made by the Respondent and his associates that if the management allow the non-Unionist Mr. J. Langston access to his job of work, they will withdraw their labour from the factory of C.U.K. Ltd., Ryton, Coventry, War."

He sought the following relief:

"I Joseph Langston request and apply for an injunction to restrain the respondent and his Trade Union Associates from obstructing the course of justice by threats or making threats, to the Company Management against my legally-established right of free access to any normal place of employment at the factory of

Chrysler United Kingdom Limited,

Ryton Assembly Plant,

Ryton on Dunsmore,

Near Coventry,

Warwickshire.

I seek restitution of my constitutional rights, freedoms and liberties.

In the name of the Crown.

Date: 25th January, 1973

Signed: J. Langston."

On receiving this application the Industrial Court did three things:-

(i) The Court were of opinion that the employers Chryslers were a proper party to the proceedings and directed that they be joined as respondents. This was in accordance with Rule 22 of the Industrial Court Rules.

(ii) The complaint was made against "Mr. Walton and his trade union association". The Court asked Mr. Langston whether Mr. Walton had been acting on behalf of the union in making the threats. Mr. Langston said it was so. The Court then said that it was inappropriate for Mr. Langston to complain against Mr. Walton: and that he should complain against the Amalgamated Union of Engineering Workers in accordance with the decision of the House of Lords in Heaton's case (1973) 3 W.L.R. 431, Mr. Langston accepted their advice. The Court made an order that Mr. Walbon should cease to be a party to the proceedings. The complaint was served on the Amalgamated Union of Engineering Workers and they were thereafter treated as respondents. It is true that Heaton's case makes that organisation responsible for the acts of shop stewards when done in accordance with their policy. But it does not relieve the shop stewards of responsibility for their conduct. If Mr. Langston felt that he had a justifiable complaint against Mr. Walton, he was entitled to make him a respondent.

(iii) The Court felt that the case raised difficult issues of law: and that as Mr, Langston was not represented, they asked the Treasury Solicitor to instruct Counsel to assist the Court. Mr. Peter Scott came as amicus curiae. He was of great assistance The Amalgamated Union of Engineering Workers did not appear, nor were they represented. After considering the matter, the Court on 27th February, 1973, dismissed Mr. Langston's complaint. They held that they had no jurisdiction to deal with it.

SECTION 33(3)(a)

It appears that the Industrial Court assumed that Mr. Langston was making a complaint under section 33(3)(a) of the Industrial Relations Act, 1971. This says in effect that, if a worker exercises his right not to be a member of a trade union — and then a trade union or any person brings pressure to bear on the employer so as to get him to penalise or discriminate against that worker — then the trade union or other person is guilty of an unfair industrial practice.

At first sight it would seem that under section 33(3)(a) the worker who was penalised or otherwise discriminated against, could make a complaint against the trade union or other person who was guilty of the unfair industrial practice. Section 101(1)(c) would seem to enable the worker himself to be the complainant because he would be "the person against whom the action was taken".

But this simple view is made of no avail by reason of section 105(1)* This says that, in regard to a complaint under section 33(3)(a) "the reference in section 101(1)(c) to the person against whom the action was taken shall be construed as a reference to the employer and not to the worker". This shows that the worker himself cannot complain against the person who has brought pressure to bear on the employer. The only person who can complain under section 33(3)(a) is the employer himself. Mr. Scott suggested that this result might be avoided by some manipulation of the words. But the suggestion was no good. It was quite properly rejected by the Industrial Court.

The result is that if a worker in the position of Mr. Langston is dismissed, suspended or otherwise discriminated against by reason of pressure brought on the employer, the only way of invoking the provisions of the Act is this:

(i) He can lodge a complaint to an Industrial Tribunal against the employer on the ground that he has dismissed, penalised or otherwise discriminated against the worker, see section 3(2) and section 106(l)(b). He can recover compensation in money up to the sum of £4,160, but not more: see section 118. In those proceedings it is no defence to the employer to say that he was induced to do it by reason of pressure exerted on him by industrial action, by a trade union or other person, or the threat of it, see section 33(1)(2). Such pressure is no ground for diminishing the man's compensation, see section 116(5)* But the employer can bring in the trade union or other person as third party and can claim indemnity or contribution from him, see section 119.

In the present case, Mr. Langston could not very well make any complaint against his employers, Chryslers. It is true that they had suspended him from work. But they had softened the blow by paying him full wages. He had not sustained any financial loss. So he might not be able to recover any compensation from Chryslers, see section 116. Accordingly he could not invoke the procedure I have mentioned.

SECTION 96

Before us, however, Mr. Peter Scott suggested that Mr. Langston may have a remedy under section 96 and 101 of the Act. Mr. Langston's complaint was homemade, but it is wide enough to come within section 96. His submission to this Court was this:

"The question of the right no work is a matter of the greatest public importance and interest. I submit that this Court please clarify and declare my Right to Work at my normal job of work at my normal place of employment."

If it be a term of the contract of employment that a man has a right to work, then Mr. Langston's complaint could properly be put under section 96. This says that:

"It shall be an unfair industrial practice for any person in contemplation or furtherance of an industrial dispute, knowingly to induce or threaten to induce another person to break a contract to which that other person is a party, unless the person so inducing or threatening to induce the breach of contract -

(a) is a trade union or an employers' organisation, or

(b) does so within the scope of his authority on behalf of a a trade union or an employers! association."

Those exceptions do not apply here: because the Amalgamated Union of Engineering Workers is not registered. It is, therefore, not a "trade union" within the Act, see section 68(3).

Mr. Harvey suggested that there was no possible ground for Mr. Langston invoking section 96 here, and on that account, Mr. Langston's complaint should be dismissed. He put it on three grounds:-

In the first place, Mr. Harvey suggested that there was no evidence of an inducement or threat to induce a breach of contract, I do not think this is a good ground. The threat by Mr. Walten, if proved, could be construed as knowingly intended to induce the employers to break their contract with Mr. Langston in some way or other, such as by dismissing him immediately without notice.

In the second place, Mr. Harvey suggested that there was no evidence of breach of contract. This was based on the fact that Chryslers had not dismissed Mr. Langston. They had only suspended him from work. And they had paid him full wages. So it was said there was no breach of contract. In this regard we were referred to Collier v. Sunday Reference Publishing Co. Ltd. (1940) 2 K.B., where Mr. Justice Asquith said (at page 650):

"It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all of my meals out"....

Mr. Justice Asquith went on to refer to two cases where a commercial traveller and a salesman

"were held to have no legal complaint so long as their salary continued to be paid, notwithstanding that owing to their employer's action they were left with nothing to do. The employers were not bound to supply work to enable their employee as the phrase goes to 'keep his hand in', or to avoid the reproach of idleness, or even to make a profit out of a travelling allowance."

That was said 33 years ago. Things have altered much since then. We have repeatedly said in this Court that a man has a right to work, which the Courts will protect, see Nagle v. Feilden (1966) 2 Q.B. 33; Hill v. Parsons (1972) 2 Ch. 305. I would not wish to express any decided view, but simply state the argument which could be put forward for Mr. Langston:- In these days an employer, when employing a skilled man, is bound to provide him with work. By which I mean that the man should be given the opportunity of doing his work when it is available and he is ready and willing to do it. A skilled man takes a pride in his work. He does not do it merely to earn money. He does it so as to make his contribution to the well-being of all. He does it so as to keep himself busy, and not idle. To use his skill, and to improve it. To have the satisfaction which comes of a task well done. Such as Longfellow attributed to the village blacksmith:-

"Something attempted, something done

Has earned a night's repose."

The Code of Practice contains the same thought. It says, at paragraph 8, that "management should recognise the employee's need to achieve a sense of satisfaction in his job and snould provide for it so far as practicable."

A parallel can be drawn in regard to women's work. Many a married woman seeks work.. She does so when the children grow up and leave the home. She does it, not solely to earn money, helpful as it is: but to fill her time with useful occupation, rather than sit idly at home waiting for her husband to return. The devil tempts those who have nothing to do.

To my mind, therefore, it is arguable that in these days a man has, by reason of an implication in the contract, a right to work. That is, he has a right to have the opportunity of doing his work when it is there to be done. If this be correct, then if any person knowingly induces the employer to turn the man away - and thus deprive him of the opportunity of doing his work - then that person induces the employer to break his contract. It is none the less a breach, even though the employer pays the man his full wages. So also when fellow workers threaten to walk out unless a man is turned off the job, they threaten to induce a breach of contract. At any rate, the man who is suspended has a case for saying that they have induced or threatened to induce the employer to break the contract of employment.

In the third place Mr. Harvey suggested that there was no "industrial dispute" in existence or in contemplation. This was based on Cory Lighterage v. Transport and General Workers Union (1973) 1 W.L.R. 793, where this Court pointed out that the definition of "industrial dispute" in section 167 did not include disputes between "workers and workers". But we added that very often a dispute between workers and workers evolves into a dispute between employers and workers. In the present case the dispute at the beginning was between Mr. Langston and his fellow workers. So long as he was employed by Chryslers at his job, he was not in dispute with his employers. But as soon as the other men went to Chryslers and said to them: "We will not work with Langston. He must not be allowed on the plant" -then one of two things were in contemplation:- On the one hand Chryslers might refuse the men's demands. If they did so, there would be a dispute between Chryslers and the workers. It would be a dispute as to the termination or suspension of Langston from his employment. On the other hand, Chryslers might accede to the men's demands. They might dismiss or suspend Mr. Langston from his work against his will. If they did so, there would be a dispute between the employers and Mr. Langston. It would be a dispute either as to the termination or suspension of his employment, or, at any rate, as to the terms and conditions of his employment. He claimed to have a right to work at his job.

The employees would not allow him to do it. It is very different from the Cory Lighterage case, where Shute was only too pleased to be sent home on paid leave (see 1973 1 W.L.R. at page 810A). In either event, therefore, there was in contemplation a dispute between the employers and one or more workers, and it came within the definition in section 167.

I cannot, therefore, accept any of the three suggestions made by Mr. Harvey. I do not think a claim by Mr. Langston under section 96 could be struck out on the ground that it was not arguable. It should, therefore, be allowed to proceed.

CONCLUSION

It was suggested in the course of the argument that Mr. Langston might have a remedy in the ordinary Courts. But if the dispute was an "industrial dispute", I do not, as at present advised, think he would have any remedy except in the Industrial Court. He would not have a remedy in tort. That is barred by section 132. The only thing that he can complain of is an unfair industrial practice: and the only remedy for it is in the Industrial Courts, see Cory Lighterage (1973) 1 W.L.R. at pages 816-7. Seeing that he has no remedy under section 33(3)(a), it would seem appropriate that he should have a remedy under section 96. He has a genuine complaint against the Amalgamated Union of Engineering Workers and some of its officials: and he is entitled to have it heard. By the statute, there is only one Court which is available to him. It is the National Industrial Relations Court. He should not be sent away unheard. I would allow the appeal and remit the case to that Court for hearing on the merits.

LORD JUSTICE CAIRNS. I am quite satisfied that on the only matter that was considered by the National Industrial Relations Court the decision of that Court was right. Section 101(1)(c) of the Industrial Relations Act 1971 provides that the complainant must be the person against whom the action was taken. Section 105 (1) provides that when the complaint is under section 33(3)(a) the person against whom the action was taken means the employer and not the worker. It seems to me to follow as a matter of grammar and simplest application of logic that when the complaint is under section 33(3)(a) the complainant must be the employer and not the worker.

Mr. Scott contends that it would be obvious even without section 105(1)? simply by application of section 33(3)(a) and section 101(1)(c), that the person against whom the action was taken is the employer, and therefore section 105(1) must be given a different meaning. To this I would make three answers: first that it is not at all obvious to me from reading section 33(3)(a) that the person, and the only person, who could claim to be the person against whom the action was taken is the employer: secondly, that Parliament does sometimes enact a provision which is not strictly necessary, in order to remove any possibility of doubt; thirdly, that Mr. Scott's interpretation would have the result of giving to the combined effect of section 105(1) and section 101(1)(c) the precise opposite of the only meaning of which the words are reasonably capable.

I am conscious that I may not have fully understood Mr. Scott's argument - the more so because the Industrial Relations Court regarded the point as one of difficulty. But I feel no doubt at all that Mr. Langston is debarred from complaining under section 33(3)(a).

If Mr. Langston had been legally represented I should have been inclined to say that, having failed to establish his right of action on the only basis that was advanced in argument in the Industrial Relations Court, his appeal must fail. But his home-made application is wide enough to cover a complaint under section 96 and his notice of appeal is in sufficiently general terms to apply to such a complaint: so I think we should consider it.

Mr. Langston could succeed under section 96 only if he could establish that his contract with Chrysler gave him not merely a right to be paid his agreed wage but a right to come to work to earn it. If Turner v. Sawdon (1901) 2 KB 653, is good law at the present day, he may not be able to establish any such right; but there have been great developments in the attitude of the legislature and the Courts to contracts of service since 1901. There is no recent decision of this Court, and no decision at all of the House of Lords, to the effect that a contract such as Mr. Langston had with Chrysler gives him no right to attend normally at his place of work. Unless it is clear beyond argument that he has no such right, he ought not to be shut out from setting up his case.

I feel more difficulty about Mr. Harvey's contention that there was here no industrial dispute within the meaning of the Act of 1971. There is on the face of it a close resemblance between the circumstances of this case and those considered by this Court in Cory Lighterage v. Transport and General Workers' Union (1973) 1 W.L.R. 792. But in that case the Court had all the facts before it and was able to see that at no stage was there any dispute between the employers and the union or the worker. Here the full facts have not been investigated. If evidence is called, it may appear that Chrysler have not remained uncommitted in the conflict between Mr. Langston and the union. I am not for the moment saying that this will appear - only that the stage at which the matter can properly be decided has not yet arrived.

I therefore consider that the appeal should be allowed and the matter remitted to the Industrial Relations Court to continue the hearing of such complaint as Mr. Langston may advance under section 96.

I would add that in reaching this conclusion my mind is in no way affected by any question of whether Mr. Langston might or might not have any remedy for his grievance in a common law Court. We are only concerned with his complaint under the Act of 1971* That Act affords many grounds of complaint which do not exist at common law. When doubt arises whether a particular grievance is one for which the Act gives a remedy I consider it quite immaterial whether there is a remedy in the common law Courts or whether the grievance is one for which the law affords no redress.

LORD JUSTICE STEPHENSON: After the arguments addressed to us in relation to section 33 I am no longer in any doubt that Mr. Harvey's construction of section 101(1)(c) and section 103(1) is the right one. The unfair industrial practices referred to in section 33(3) - and section 96(1) - involve more than two parties, and there is therefore in both cases more than one candidate for the post of "person against whom the action was taken", which constitutes the unfair industrial practice. It was then wise if not necessary to select the candidate Parliament intended to occupy that post, and this is what Parliament did in section 105(1) - and (2). Without section 105(1) the person against whom the action was taken - and therefore the complainant might have been the employer against whom it was taken directly or the worker against whom it was taken indirectly through the employer. Section 105(1) makes it plain t at it is the employer and not the worker. Nothing but confusion is introduced into the construction of these provisions by beginning at the wrong end of section 101(1)(c) with the complainant, who is the subject of the sentence, instead of the predicate, which is the person against whom the action was taken.

The new question raised under section 96 has given me much more trouble. I doubt whether the appellant has a case which will get him over the formidable barrier set up by Mr. Harvey's threefold submission, but like my brethren I feel unable to say that he has not an arguable case. He may be able to show in spite of the authorities cited to us and others, such as Devonald v. Rosser & Sons (1906) 2 KB 728; Karbe v. George Edwardes (Daly's Theatre Ltd. (1918) 1 K.B. 269; Herbert Clayton & Jack Waller Ltd. v. Oliver (1930) A.C. 209, that he has a right to work out any notice which he may be given, that it is his employer's duty to allow him to exercise that right by providing him with work, and that by continuing to suspend him on full pay, as they are doing, they are in breach of their contract of employment with him. If so, it is conceded that the A.U.E.W. might arguably be guilty of an unfair industrial practice under section 96(1) unless it was unarguably not "in contemplation or furtherance of an industrial dispute". There may well be no material difference between the facts in the Cory Lighterage case and the facts in this; but Mr. Scott has convinced me that it is impossible to go so far as to hold without evidence that because what was done by Mr. Shute, Cory Lighterage and the Transport and General Workers Union on the affidavit evidence in that case did not amount to a situation where there was an industrial dispute, it necessarily follows that what is assumed to have been done by the A.U.E.W. in this case cannot have been done in contemplation or furtherance of an industrial dispute.

I concur in allowing this appeal and remitting to the National Industrial Relations Court the appellant's complaint against the Amalgamated Union of Engineering Workers under section 96.

THE MASTER OF THE ROLLS: Mr. Langston, we allow your appeal and remit the matter to the Industrial Court for hearing of your case.

Appeal allowed: remitted to the National Industrial Relations Court for hearing. No order as to costs. Leave to appeal to the House of Lords refused.