United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 635_91_0610, [1992] UKEAT 635_91_610

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BAILII case number: [1992] UKEAT 635_91_0610

Appeal No. EAT/635/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 October 1992

Before

THE HONOURABLE MR JUSTICE KNOX

MR P DAWSON OBE

MR J C RAMSAY

CROSVILLE WALES LTD APPELLANTS

MISS S J J TRACEY & OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR J MCMULLEN

(Of Counsel)

Messrs Wragge & Co

65 Colmore Row

Birmingham

B32 A5

For the Respondents MR N HINCHLIFFE

(Of Counsel)

Jack Thornley Solicitors

8 Warrington Street

Ashton Under Lyne

OL6 6XP

MR JUSTICE KNOX: This is an Appeal by Crosville Wales Ltd, which I will call "the Company", from a decision of the Industrial Tribunal sitting at Shrewsbury on 28 and 29 August 1991 in which the Tribunal decided on a preliminary issue that it had jurisdiction under S.62 of The Employment Protection (Consolidation) Act 1978 to hear the complaints of unfair dismissal that were brought by a very large number of ex-employees of the Company.

The facts were helpfully summarised for us by Mr McMullen who appeared for the Company. He summarised the evidence on the facts as follows:

"1. The Industrial Tribunal found

1.1 there was a strike of all 119 employees at Wrexham from 31.10.90 [I interpose to say that that was the end of unsuccessful negotiations for revision of the wage structure of the employees]

1.2 the strike put the Company in a very difficult financial position

1.3 all employees were sent a letter on 1.11.90 repeating the last pay offer and giving a deadline of 3.11.90 to return to work or be dismissed

1.4 none of the employees responded and on 5.11.90 all were dismissed by letter on account of gross misconduct

1.5 from 10.11.90 the Company recruited replacement staff

1.6 the Company would have had difficulty after 15.11.90 if more than about 60 drivers had accepted re-engagement as they would be surplus to the then requirements [and finally, but not I think, relevantly]

1.7 on 24.2.91 the depot was closed down."

To come to somewhat more detail in relation to the facts regarding the recruitment by the Company upon which the principal and first issue on the Appeal turns, the Industrial Tribunal made the following findings having set out the termination of the employees' employment:-

"consequently the respondents [that is the Company],began to recruit replacement staff. This took various forms, including notices at the Wrexham depot, press and local radio announcements, and advice to local Job Centres. All applications were considered, whether or not those applying had been involved in the strike action and had been dismissed. Every new employee was however offered new terms and conditions of employment in line with the respondent's final pay offer to those employees who had been dismissed because of their industrial action.

...Indeed there have been twenty five offers made to those who had taken part in the industrial action, as the twenty two employees, who were re-engaged, illustrated. It is true that all of the strikers we found knew that the company was recruiting; they knew that some were talking with management about re-engagement, for example, a Mrs Rhinnon (sic) Gibson, who was one of the key activists in the industrial action; certainly from 10 November strikers were being re-engaged; they all knew the procedure to become re-engaged, they had to obtain an application form from Mr Poole, the Depot Manager, and they would then obtain an interview. We have no hesitation in saying that all employees knew that the company was recruiting. Equally, we accept that no offer of re-engagement was made to all of the employees who were taking part in the industrial action. All had an opportunity of having an application form and being interviewed, and being considered for re-employment and that there (sic) service would begin from the date of the re-engagement."

I turn next to the section upon which the Appeal turns. S.62 subsection (1) reads:

"(1) The provisions of this section shall have effect in relation to an employee (the "complainant") who claims that he has been unfairly dismissed by his employer where at the date of dismissal -

(a)the employer was conducting or instituting a lock-out, or

(b)the complainant was taking part in a strike or other industrial action. [Pausing there for a moment it is common ground that it is (b) that applied in this particular case].

(2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -

(a)that one or more relevant employees of the same employer have not been dismissed, or

(b) that any such employee has, before the expiry of the period of three

months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement.

That involves two defined expressions which are defined in subsection (4):

"(b) "relevant employees" means -

(i) ...

(ii)in relation to a strike or other industrial action, those employees at the establishment who were taking part in the action at the complainant's date of dismissal;...

(c)any reference to an offer of re-engagement is a reference to an offer ...to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

"Job" is a defined term. S.153 (1) reads in relation to "job":

"in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed."

We were referred to three relevant authorities. The first is MARSDEN & OTHERS v FAIREY STAINLESS LTD [1979] IRLR 103 where S.62's predecessor, paragraph 7(2)(b) of Schedule 1 of the Trade Union and Labour Relations Act 1974, was in issue. There was no relevant difference between those two enactments for our purposes. The facts in that case are stated at the beginning of the IRLR as follows:-

"Following a dispute with the respondents over whether they would be paid for time spent in the canteen during a stoppage of work, the appellant and some 35 other workers went out on strike on 14.9.77. On 26.9.77, the respondents wrote to all the strikers dismissing them but offering them re-engagement provided the offer was accepted by 29.9.77. The letter to Mr Marsden was wrongly addressed and never reached him. He did not go back to work by the requisite date and claimed that his dismissal was unfair."

In relation to that the Industrial Tribunal found that Mr Marsden had in fact had an offer of re-engagement and this Tribunal dismissed an Appeal from that decision.

The conclusions that were stated after setting out the facts by the Employment Appeal Tribunal are contained in paragraphs 12 and 13 in the following terms:

"There is no doubt, therefore, as a finding of fact that Mr Marsden knew of the letter; he knew of the contents; he knew of the offer of re-engagement, and he knew that it referred to him. Can it be said therefore that an offer of re-engagement has not been made to him so as to bring in the jurisdiction of the Tribunal to consider the fairness or otherwise of the dismissal?

There is no requirement in the Act that the offer must be in writing. The only requirement is that there shall be an offer of re-engagement and that none has been made to him. In our judgment, the Industrial Tribunal came to the correct conclusion when they found on the facts - and the facts were for them - that there was an offer of re-engagement made to Mr Marsden. Strictly speaking it is a matter of mixed law and fact. So far as the facts are concerned they have decided the matter clearly. So far as the law is concerned they have correctly construed the terms of para. 7 in finding that such an offer of re-engagement was made."

The question in issue there was whether, when an offeree does not receive the physical piece of paper which contains the offer made to him, it can still be said that an offer has been made where the offeree is perfectly well aware that such an offer is being made and was intended to be made to him and the decision of this Tribunal is to the effect that it is open to an Industrial Tribunal to hold in those circumstances that an offer is actually made to the offeree notwithstanding that he did not receive the particular piece of paper which he was intended to receive. That in our view does not really help with the question of whether the way in which the employer behaves amounts to the making of an offer. What MARSDEN's case was about was the necessity for the admitted offer physically to reach the offeree.

The second relevant authority was BOLTON ROADWAYS LTD v EDWARDS AND OTHERS [1987] IRLR 392 where S.62, and not its predecessor, was in issue. This concerned a Mr Pennington, who was somewhat differently treated from all the other persons who were on the relevant strike. The facts regarding Mr Pennington are stated as follows:

"On 22.9.84, the appellants' employees decided to take unofficial strike action from the morning of 24 September over the dismissal of a colleague. A lorry driver, Mr Pennington, worked a night shift and was due to commence work at 1 am on 24 September. It was agreed by the strikers that he would be permitted to work his shift, returning to the appellants' premises at about 11.30 am. Mr Pennington was not at that meeting.

At 7.30 am on the 24th, the 12 respondent day shift employees instead of reporting for work, went on strike and formed a picket. On his return, Mr Pennington reported to the employers and informed them that he would not be joining the strike. Subsequently, however, he joined the picket line and advised the pickets on the conduct of the strike.

There then was a letter from the employers saying to the strikers:

"if you do not report for duty tomorrow, Tuesday 25.9.84, the company will consider your employment terminated"

and that letter was handed to the 12 respondents on the picket line and to Mr Pennington at his home. When Mr Pennington failed to report for work on the next day, he was regarded as dismissed. However, a few hours after his starting time he phoned the employers and explained that he was sick. The employers accepted this explanation and reinstated him. The 12 respondents did not report for work and were dismissed. They claimed that the dismissal was unfair and on those facts the issue arose first of all, whether Mr Pennington had in fact been dismissed, and that was answered in the affirmative, and secondly, although there were other issues that do not now matter, whether an "offer of re-engagement" was made to Mr Pennington within the meaning of that phrase in subsection (4)(c) of S.62?" - and on this Mr Justice Scott said this at para. 25:

"As to this, Mr McDermott's point [Mr McDermott was for the appellant employers] was that Mr Pennington had, so to speak, slid back into employment through the telephone call he had made in the early hours of Tuesday morning and the acceptance by his employer that his absence from work at 1 am was not on account of strike action but was because he was ill. Mr McDermott submitted that an "offer of re-engagement" required some positive offer, and that a mere tacit acceptance of continuance of employment, as perhaps happened in the instant case was not sufficient. He submitted that the purpose of S.62 was to provide protection for an employer except where there had been discrimination against one or more of the employees on strike. When Mr Pennington told his employer about his back trouble, the employer's decision to reinstate him did not constitute discrimination as between the body of men on strike on the one hand and Mr Pennington on the other hand.

We see the force of Mr McDermott's submission, but "offer of re-engagement" in subsection (4)(c) has to be read and construed as a matter of ordinary English. The distinction between a positive offer as opposed to a tacit, implied offer is one which is incapable, in our view, of precise definition. It would be no service at all to the certainty and clarity of employment law to draw such a distinction in construing "offer of re-engagement".

"Offer of re-engagement" means, in our opinion, no more and no less than that it is held open for the employee. That is what happened in this case. There was an offer of re-engagement. The offer was accepted, and Mr Pennington resumed his employment."

That meant of course, that the Industrial Tribunal was correct in finding as it did, that the case was not one within S.62. That is in our view a very special case in that the issue was whether an employee, whose employment had determined, and who undoubtedly became employed again, had in the intervening period received an offer of re-engagement and, although there was nothing formal in the nature of an offer, it in our view was plainly a possible, if indeed not an inevitable explanation of that succession of differing status which Mr Pennington occupied - first being employed, then being dismissed, then being employed again - that in the meantime there had been an offer of re-engagement which led to his becoming an employed person again.

That again is a different problem from the one that we have to grapple with because there is no doubt at all about the nature of the offer that was implicitly made to Mr Pennington, nor was there any problem in relation to the people to whom the offer was addressed.

The third and last case that impinges on this issue is one to which I shall refer somewhat later because it was primarily directed at a second point that was argued before us but to identify the decision at this stage it is WILLIAMS v NATIONAL THEATRE BOARD LTD [1982] ICR 715. The Industrial Tribunal had the benefit, as we have had, of clear and helpful arguments and they had cited to them both the cases from which I have read extracts, Marsden's case and the Bolton Roadways' case. They expressed their conclusion in the following terms, in para. 7 of their decision:

"We have come to the unanimous decision that having regard to S.62 of the Employment Protection (Consolidation) Act 1978 we have jurisdiction in this case because we find that a number of the relevant employees had not been offered re-engagement when other employees also taking part in the industrial action were re-engaged."

And they quote passages that I have read from Mr Justice Scott's judgment in the Bolton Roadways' case. They continue:

"We find it difficult to accept that announcements on the radio, advertisements in newspapers and Job Centres, which were open to all and not solely to the ex-employees of the respondent company, were offers of re-engagement which complied with sub-section (4)(c) of S.62. It could be said that these advertisements and notices were offers of engagement held open for the employees, but in our view, that is not what happened in this case. There were advertisements for jobs to be filled by any person who wanted to apply for an application form for a job."

And they then went on to another point which raises a different question under the grounds for appeal.

The first ground of appeal before us is stated as follows (correcting what might be a slight misprint):

"The Industrial Tribunal erred in law as follows:-

(i)The Industrial Tribunal misapplied the judgment in Bolton Roadways Ltd. v. Edwards and Others 1987 IRLR 192 (EAT Scott J.) and the interpretation there given to Section 62(4)(c) in holding that although the Respondents knew that the Appellant was recruiting [and then we suspect it should read "and that"] offers of employment were being made, offers within Section 62 were not made to the Respondents."

So the point that is there quite clearly raised is whether there were indeed offers made to the generality of the Respondents, that is to say the Applicants who were as we have said very numerous and that in turn turns on whether, as Mr McMullen for the company submits, the general notices on the press and in the radio and elsewhere, to all and sundry coupled with the knowledge by the ex-employees that there was a clear and not particularly difficult procedure for them to follow whereby they probably would be offered a job if they applied, can be said to constitute an offer of re-engagement within subsection (2) of S.62.

We are of the view that the Industrial Tribunal was entitled to reach the conclusion that it did reach. It is as was observed in the authority of Marsden a mixed question of fact and law. What was in our view, on the facts found by the Industrial Tribunal, made available to the employees, was the opportunity of having an offer made to them. The very fact that offers were subsequently made by the Company to those who did apply to Mr Poole in our view lends strong support to the view that what had happened earlier was not in any true sense of the word an offer of re-engagement. Had it been so there would not have been a need for the second lot of offers. In a formal legal analysis what in our view happened when the press, radio and other general notices were issued, was that there was an offer to treat for re-engagement rather than an offer of re-engagement and that in our view is highlighted by the nature of the offer that was made in the third and last case to which I have referred but not quoted from, WILLIAMS v NATIONAL THEATRE BOARD LTD. That was a case where employees were dismissed as a result of their actions in indulging in unofficial industrial action. They received a letter which is set out at page 718 in the course of the judgment of Lord Denning M.R. which read as follows:

"We invite you to apply for re-engagement. You will be re-engaged, should you apply, without effect on your continuity of employment, but on the basis that you will be treated as being on second warning (as described under clause 10(2) of the agreement) in regard to your general conduct."

And as Mr Hinchliffe submitted to us for the Respondent employees, there is all the difference in the world between a letter which says "we invite you to apply for re-engagement, you will be re-engaged should you apply" on the one hand and an advertisement campaign issued to the generality of mankind and indeed womankind, offering employment to all and sundry. The latter does not in itself amount to an offer of employment to any particular individual. It is a preliminary step towards that state of affairs. We can well see that the letter that was written in the Williams case falls into a different category.

For those reasons we conclude that the Industrial Tribunal did not err in the conclusion that it reached regarding the question of whether an offer was made of re-engagement within the section.

The second ground of appeal was not proceeded with, and I need not deal with that.

The third ground of appeal, it was common ground, only arose if in fact the first ground succeeded - and it does not. It raises what would have been an interesting and difficult question of analysing the three significantly different judgments in the Williams case, a task which it would perhaps be imprudent for us to embark upon. It certainly is unnecessary for us to do so and we do not propose to do more than dismiss this appeal.