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BAILII case number: [1992] UKEAT 99_92_2307

Appeal No. EAT/99/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 July 1992

Judgment delivered on 13 October 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)

MRS R CHAPMAN

Ms B DEAN

ASSOCIATED BRITISH PORTS APPELLANTS

PALMER & ORS RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr P Elias QC

Mr A Wilkie QC

Mr R V Pearce, Solicitor

Director, Legal Services

Associated British Ports

150 Holborn

LONDON EC1N 2LR

For the Respondents Mr P C Clark

(of Counsel)

Messrs Pattinson & Brewer

Solicitors

30 Great James Street

LONDON WC1N 3HA

MR JUSTICE WOOD (PRESIDENT) Mr Palmer, Mr Stedman and Mr Wyeth are all members of the National Union of Rail Maritime and Transport Workers (the RMT). Their cases are identical. Their complaint in their Originating Application was that their employer, Associated British Ports (ABP) had taken action short of dismissal against them in contravention of S.23(1)(a) of the Employment Protection (Consolidation) Act 1978.

By a decision promulgated on 20th January 1992 an Industrial Tribunal sitting at Southampton found in their favour. Compensation has been agreed. Mr Palmer (£2,850), Mr Wyeth (£2,020) and Mr Stedman (£1,650).

ABP now appeal. The Notice of Appeal has been amended, without objection.

Section 23(1)(a) has recently been considered by this Court in ASSOCIATED NEWSPAPERS v. WILSON (EAT/612/90). There is one major distinction on the facts in that in the ASSOCIATED NEWSPAPER case the Trade Union had been derecognised, whereas in the present case the RMT, at the relevant time, had not. For a period after February 1991 ABP continued to negotiate with RMT for those who wished this to continue, as indicated in the originating application. However, RMT has by now been derecognised.

The case for the Applicants is succinctly set out in the Originating Application of Mr Palmer.

"In February 1991 I received a letter from the Personnel Manager offering me a "Personal Contract", including an increase in my basic salary from 1 March 1991 and change in the basis of my overtime calculator to my advantage. In return I had to relinquish all rights to Trade Union recognition and representation and my annual pay increases and other terms and conditions would no longer be negotiated by my trade union on my behalf.

I refused to sign the Personal Contract and, as a result, I received only an 8.9% annual pay increase negotiated by my trade union and accepted by my Divisional Organiser, Mr Stevenson, on 11 June 1991, whereas my colleagues who accepted the Personal Contract received a considerably larger pay increase, which, I believe, is in the order of £150 per week more than myself for doing exactly the same job."

The case for ABP is stated by the Tribunal in paragraph 4 of its Decision as follows -

"Mr Elias QC, representing the respondents, conceded that there had been action (short of dismissal) taken by the respondents against the applicants as individuals but said that the respondents' purpose of taking such action was not to prevent or deter the applicants from continuing to be members of the NURMTW, nor to penalise them for doing so."

We only propose to refer to the facts and the evidence sufficiently to understand the issues involved.

There are 19 ports controlled by ABP. There are 5 categories of employees: managerial, technical/clerical, supervisory, manual and others. The Applicants were in the "manual" category. Between 1988 and the middle of 1990 personal contracts had been offered to workers in the first three and also in the last categories (except foreman at Southampton) and they had been accepted by the majority. Encouraged by this success ABP offered such contracts to the employees in the fourth category with the exception of Pilots. Out of 1986 workers which included all 5 categories employed at the 19 ports, 94 had refused to accept personal contracts amongst whom were the three Applicants. If accepted by these Applicants, personal contracts would have resulted in Mr Palmer being better off by £29.52 gross per week, and Messrs Stedman and Wyeth by £20.49. There were also lesser benefits. A number of those who have accepted personal contracts have remained members of RMT. There is nothing to prevent them from so doing.

The letter offering personal contracts was dated 8th February 1991 and was in identical terms to each Applicant. It read as follows -

"Dear Mr Stedman

Personal Contract Terms

I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.

You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grades staff at Southampton. 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.

Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance, together with conditions in the employment market, and the Company's financial position.

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 - ie Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.

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.

This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms;

Allowances, eg Height, tool, allowances, etc

Holiday bonus and higher grade duty payments.

These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.

Overtime will be offered as and when necessary. There will be no contractual overtime.

Under the new terms there will be a single annual review on the 1st April, the first review being on 1st April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).

If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter.

To summarise, if you choose to accept the new individual contract, then this will mean:

(a)your wages will be increased from 1 March 1991, as separately notified. This wage includes consolidation of the holiday bonus which will be discontinued in future under the new terms;

(b)your current negotiated wage range for your post will no longer apply, and your pay will be determined on the basis of your responsibilities, performance, conditions in the employment market and the financial position of Association British Ports;

(c)your wages will be reviewed once annually on 1 April, the first review being on 1 April 1992.

(d)your current overtime calculated of 95.75% will be increased to 100%;

(e)your pension voluntary severance and redundancy entitlements will remain unchanged (other than the improvement in the overtime calculator);

(f)if you wish, the Company will pay for private medical insurance (PPP) for you, which may be extended to include your spouse and children (under 21) at your own expense;

(g)(no higher grade payments will be made in future if you accept the Personal Contract.

(h)All existing local agreements with regard to working arrangements, overtime etc, will be superseded by the enclosed Conditions of Employment, Manual Grades Staff, Southampton.

The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it.

Yours sincerely

M S Colling

Personnel Manager

for Port Manager"

Each Applicant received a second letter of the same date giving details of the financial benefit to him personally and a copy of the proposed Personal Contract.

As we have seen members of the RMT accepted personal contracts and indeed remained members of the Trade Union. The Applicants did not accept those contracts and on 12th March 1991 RMT started negotiations with ABP in respect of those employees including the Applicants who RMT still represented. As a result of those negotiations there was an increase in the rates of pay for the year 1990/91 of 8.9%. This was less than the increase paid to those on personal contracts, but there is no indication from the Decision of the Tribunal whether or not the other terms and conditions of service were altered as they were in the case of the personal contracts.

Mr Channing, for ABP, gave evidence that the Respondents' purpose in granting personal contracts on financially preferential terms was not to deter or penalise the Applicants from being members of the Trade Union. He said that the Respondents' purpose was "to put into the hands of management the opportunity to discriminate in terms of pay in favour of those who are outstandingly dedicated". He also said that from the employers' point of view it was "damaging to be tied to annual wage bargaining when the market may be weak". He also felt it important to "develop a direct relationship with each employee which would result in greater loyalty". He emphasised that there was nothing in the personal contract to prevent an employee continuing to be a member of the RMT and being represented in disciplinary matters by a fellow employee who might happen to be a member of RMT. His object was to endeavour to ensure that the Respondents did not have to negotiate over pay and conditions with a Trade Union representative which he looked upon as a hurdle. The Respondents were offering the personal contract in return for the benefit of greater flexibility.

Mr Stedman gave evidence for himself and on behalf of the other Applicants. He emphasised that they did not wish to forego the right to union representation because the union were able to supply far greater expertise than he was. He, however, conceded that from ABP's point of view there were advantages in being able to act speedily and there had been restrictive practices. He also conceded that the Applicants "had been held back a lot of the time from being flexible because of the union rules" and that for ABP to achieve complete flexibility union representation had to go.

Having considered the evidence the Tribunal turned to the issue of "the purpose". Their reasoning is set out in paragraph 10 as follows -

"That is the totality of the relevant evidence which can be summarised by saying that the respondents believed, and this belief was shared by Mr Stedman, that they could conduct their business more effectively if unhampered by the need to consult the Union. Mr Channing said that that was, to use the words in Section 23, "the purpose" of conferring benefits on the Personal Contract workers and not on the applicants. We accept that that is an honest expression of what the respondents 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 forego 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 respondents have confused purpose with objective. Put in another way if their purpose (persuading employees to abandon Union representation) succeed they would have achieved their objective (flexibility)."

Mr Elias attacks it in two ways.

First, he submits that having accepted that the Respondents' evidence was an honest expression of their purpose, nevertheless the Tribunal found that their purpose was to "penalise those who would not forego 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." Having found and accepted what the Respondents thought was the purpose, the Tribunal then rewrote it.

Secondly, and alternatively, that "the prohibited purpose" was a purpose prohibited by S.23(1)(a) properly understood, and that the purpose found did not fall foul of S.23(1)(a). It must be penalising "for being a member of the RMT".

In arguing his first submission Mr Elias made a number of points:-

(a)He referred to the Dictionary definition of "purpose" - "the object which one has in view" - or - "for which anything is done".

(b)The Tribunal had muddled "purpose" and "means". "Purpose" and "objective" are really the same. The nature of the action taken - "means" - is not the same as the "reason", "purpose", or "objective". NCB v. RIDGWAY [1987] ICR 641:658G-H.

(c)When applying the law to the word "purpose", it is useful to draw a parallel with the word "reason" so often used in the 1978 Act. He drew our attention to the case of ABERNATHY v MOTT, HAY AND ANDERSON [1974] ICR 323:330B. and HINDLE v. PERCIVAL BOATS [1969] 1WLR 174:181D and F: 182F: 187B: 188D. These cases were considered by this Court recently in PORT OF LONDON AUTHORITY v. PAYNE & ORS (EAT/51/91) and the relevant principles were summarised thus, "It seems to us from those the decisions that the following principles can be extracted: the first, that the reason is the set of facts which may be beliefs known to or beliefs held by decision-makers which cause the decision to be made; secondly, that the belief must be a genuine belief and in testing the genuineness of that belief it may be relevant to consider whether the facts upon which it was based were known to the decision-maker to be false at the time or that the inference drawn from those facts was wholly unreasonable, that the belief itself does not have to be reasonable, it has to be genuine; thirdly, that it is possible to have a mistaken belief provided it is a belief genuinely held."

(d)Relying upon NCB (supra) pp.659A to 660H and p.673C onwards, Mr Elias submits that once a Tribunal has accepted the evidence of a respondent as honest as to its belief, purpose, or objective, then that is the end of the matter. It is not then open to a Tribunal to find 'a purpose' of its own and to substitute it for 'the purpose'. That is precisely what the Tribunal has done in the present case. The evidence of the Respondents was not rejected and therefore "the purpose" is the purpose as explained in the first part of paragraph 10.

Turning to his second point, Mr Elias makes the following submissions:-

(a)Section 23 lays down the basic floor or foundation of rights. They are based upon the fundamental Right of Association, to band together to seek to advance the interests of the members. Added to this is the right to take part in activities at an appropriate time and the right not to be compelled to be or become a member of an Association.

(b)Each such statutory right - and we are dealing only with S.23(1)(a) - is the right of an individual and is not based on any contractual right between employer and employee, or between employer and trade union, or between union and employee. It must follow that it is independent of any recognition of a trade union by an employer.

(c)Thus the scope of a statutory right under S.23(1)(a) - as properly understood - cannot be enlarged by contract nor by recognition, and therefore even if a right to representation is given by contract, it will not of itself give a right under S.23(1)(a); it will only give the right to a remedy for breach of that contract. It is only if the right to representation is given by S.23(1)(a) - the statutory right - that abrogation of such a right constitutes such a breach of S.23(1)(a).

(d)Section 23(1)(a) does not oblige, and has never obliged, an employer to recognise a trade union either in broad terms of general negotiation or in narrower terms of right to representation. Under existing law the statutory Code governing the recognition of trade unions for the purposes of collective bargaining contained in Sections 11 to 16 of the 1975 Act, has been repealed by S.19(b) of the 1980 Act. The legislature thus clearly envisages a right to terminate a collective agreement by de-recognition. Thus it is submitted that it is not a breach of this sub-section if an employer de-recognises a trade union or refuses to negotiate.

(e)Mr Elias submits that the ASSOCIATED NEWSPAPERS' case was rightly decided and asks how can an employer be in a worse position if instead of de-recognising a trade union, it gives to its employees a choice whether or not to be represented by a trade union? Moreover, in ASSOCIATED NEWSPAPERS it was common ground between experienced counsel that although individual terms about pay and conditions agreed during collective bargaining can be deemed to be included in individual contracts of employment, the collective agreement can be determined and there is no right "to be bargained for" - see ROBERTSON v BRITISH GAS [1983] ICR 351F; "recognition" is not the same as "freedom of association" - so long as it does not infringe that latter right an employer can manage its labour relations as it wishes.

(g)DISCOUNT TOBACCO AND CONFECTIONERY LTD v. ARMITAGE [1990] IRLR 15, did not assist the Applicants. The issue in that case was whether the reason for the dismissal of Mrs Armitage was that she "was ... a member of an independent trade union". The evidence in relation to her trade union membership had been that she had made use of that membership by getting trade union officials to negotiate with her employer. It was submitted that evidence of the latter could not be evidence of membership. Although Mr Elias accepted that this Court was correct in finding that it could, he submitted that this did not indicate that membership of a trade union included a right as against the employer to be represented by a trade union, nor a statutory right under S.23(1)(a) to be so represented. To put it in another way, membership gave a right to ask a trade union official to act for you, but no right over against an employer if that employer refuse to negotiate with that official.

Finally, and additionally as a third submission, Mr Elias drew our attention to a passage at the end of paragraph 11 of the Decision where the Tribunal says -

"An agreement (page 1 of the agreed bundle) dated 13th June 1988 signed by Mr Kent on behalf of the Respondents and by Mr Stedman on behalf of his union provided in paragraph 3 that inter alia the applicants would receive improvements in pay and conditions of service as are determined by local agreement through the recognised machinery. How in the light of that provision it can be said that the applicants had no right to representation nor the right to be heard we just cannot follow."

He submits that if in that passage it was suggested that there was a factual basis for the finding of a contractual right between the employer and the employee to a right to representation by a trade union as the agent of the employee, then this was bad in law. He relied upon the recent case in the House of Lords, WALFORD & ET AL v. MILES ET AL [1992] 1 ALL ER 453. The Headnote of the finding was,

"... an agreement to negotiate in good faith for an unspecified period was not enforceable and nor could a term to that effect be implied in a lock-out agreement for an unspecified period, since the vendor was not obliged under such an agreement to conclude a contract with the purchaser and he would not know when he was entitled to withdraw from the negotiations ..."

He relied in particular upon the passages in the speech of Lord Ackner at pp.460 and 461

"An agreement to negotiate has no legal content"

Mr Peter Clark for the Applicant, Respondents, accepted much of ABP's submissions. He accepted -

(a) that S.23 did not provide an employee nor a trade union with the right to have that trade union recognised. As a result of the 1980 Act this was no longer a legal route by which a trade union could obtain recognition;

(b) that ARMITAGE could not be read so as to give an employee any such right;

He submitted -

(d) that S.23 was not concerned with contractual rights and that the notion of contractual rights was "a red herring" - immaterial and misleading. This Industrial Tribunal did not find that the Applicants had any such contractual right;

(e) that although the Applicants had no contractual right to an increase in pay, this did not prevent the action of ABP in offering personal contracts constituting "action short of dismissal" and this had been conceded;

(f) that the present case was to be distinguished from ASSOCIATED NEWSPAPERS. ABP could at any time have terminated local collective agreements and ceased negotiations with RMT (it has since done), but at the time of offering personal contracts, these local agreements were still recognised and therefore any relevant terms agreed would be incorporated into personal contracts of service. There was no de-recognition and therefore at that time the choice was between carrying on under the collective agreement or entering into personal contracts. This was not the ASSOCIATED NEWSPAPERS situation, where all employees were in the same position. Here the individual was attacked and if he abandoned collective agreement he would be better off. It was unattractive to continue with a collective agreement and therefore the Applicants were being deterred from being members of RMT, deterred from using an incidence of membership, which in fact existed at the time.

On the issue of "purpose" in paragraph 10 of the Decision, Mr Clark submits that this was an issue of fact and that despite the way in which that paragraph is drafted, the Industrial Tribunal was entitled to find that "the purpose" was "to penalise those who would not forego union representation by not conferring on them the benefits bestowed on those who were prepared to do so". He further stressed that by an internal memorandum from the Port Engineer to the Port Manager dated 9th April 1991 (doc. page 351-2), the Port Engineer reported on a meeting with Mr Steadman, observing that the Trade Union were prepared to negotiate agreement to bring themselves into line with the working conditions of other staff but not to sign personal contracts and thus surrender their trade union rights. The Port Engineer had added that he wished to have all staff on set of working conditions but had said,

"For obvious reasons I cannot offer parity". The Port Engineer had not been called to give evidence and Mr Clark submitted that the "obvious reasons" were that employees could not be persuaded to give up their rights to union representation without the pay differential.

Put in another way, "the purpose" was to deter employees from retaining their right to representation and, or alternatively, to penalise those who did so. This therefore fell within the wording of S.23(1)(a)

"... deterring him from being ... a member of an independent trade union ..."

The submission continues that there is no need for a detailed analysis of the meaning of "membership" under S.23(1)(a), as the right to representation - unlike the case of ASSOCIATED NEWSPAPERS - already existed and still subsisted.

The Law

It was for the Applicants to prove that ABP -

(a) took action (short of dismissal)

(b) against each of them individually

and it was then for ABP "to show the purpose for which it was taken against the complainant: - S.25(1).

In the present case it was conceded on the basis of NCB v. RIDGWAY [1987] ICR 641 that ABP had taken action short of dismissal against each of the Applicants individually. The issue is not therefore a live one, but as this branch of the law is of such importance throughout the economic activity in this country, it would be of enormous help if consideration could be given to it by a higher Court. It occurs to me that there may be a distinction on the facts from RIDGWAY, where members of the NUM and UDT were working side-by-side on identical terms and conditions of service and that increased pay was being offered merely for change of membership of a trade union - see per Nicholls LJ at p.660E. In the present case the position was that a fresh personal contract of employment was being offered, in which the consideration from each side was to be different and which did not involve any change or cessation in trade union membership.

The Purpose

Ms Brenda Dean takes the view upon the documentation, and in particular that to which Mr Clark referred, that RMT were prepared to make such concessions as would have placed those bargained for by it on the same basis, including flexibility, with those on personal contracts and that this fact undermines the case for ABP that the purpose was to achieve flexibility. The Industrial Tribunal were therefore fully entitled to go behind the reason given by ABP and to find that the true purpose was to make personal contracts so attractive that RMT would "wither on the vine", whilst at the same time maintaining the duplicity of apparently recognising the RMT. She distinguishes ASSOCIATED NEWSPAPERS because in that case there had in fact been a de-recognition. She feels that the submissions of Mr Elias involve too close a scrutiny of the drafting of paragraph 10 and is satisfied that although, as conceded by Mr Steadman, flexibility was part of ABP's thinking, nevertheless the Industrial Tribunal were entitled to find that "the purpose" - "the main purpose" - was to penalise those who would not forego 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.

Mrs Chapman and I find ourselves persuaded by Mr Elias' submissions on this issue. There is no real distinction between the reason or purpose for doing an act, but there is a real distinction between the reason or purpose, and not only the means by which it is achieved, but also the intermediate or collateral results which may be caused in achieving the ultimate purpose. In approaching this issue the principles in ABERNATHY and HINDLE relied upon by Mr Elias are applicable. Either an Industrial Tribunal accepts the purpose put forward by a respondent or it does not. It cannot both accept and reject in the same breath. That purpose is to be contrasted with the means or with the collateral results. In particular we are persuaded that the concession by Mr Steadman in paragraph 9 of the Decision, "... that for the Respondents to get complete flexibility, Union representation had to go", indicates that the only way of achieving this aim was through the course taken by ABP. The steps taken were the means, flexibility was the purpose.

It was sought to be argued that statutory rights under S.23(1)(a) could be adduced from the case of ARMITAGE.

The issue in ARMITAGE is clearly stated in the judgment of Knox J at paragraph 12 where he says -

"... 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."

The relevant passages in the judgment are in paragraphs 12, 13 and 14.

"12 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 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.

13 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. ...

14 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."

We have omitted some words above and it is upon those words that particular reliance is placed by Applicants -

"It is an incident of union membership which is, if not the primary one, at any rate, a very important one and we see no genuind distinction between membership of a union on the one hand and making use of the essential services of a union, on the other."

Thus it is argued that an employee has a right as against his employer to representation by a trade union and this right arises from that membership. We find ourselves unable to accept this, not only because of the distinction made by Knox J himself between membership on the one hand and making use of the essential services on the other, but because all that Armitage decided was that use of the facilities of membership was evidence upon which an Industrial Tribunal could decide that the reason for dismissal was for membership of a trade union. We cannot accept that Knox J was intending to indicate that an employee had a statutory right as against his employer, not only to recognition of his trade union but to have his terms and conditions of service negotiated by that employer only through that trade union.

The right under S.23(1)(a) is for a complainant not to have action (short of dismissal) taken against him or her for being a member of an independent trade union. It is a statutory right existing between employer and employee. Neither party argues that is contractual. Nor do we think that they could. If it were contractual the remedy for breach would lie in damages. This Tribunal considered the position in ASSOCIATED NEWSPAPERS (transcript at p.13C-H). Nor is there any contractual situation between the employer and the recognised trade union. Collective agreements (we have not seen this one) are not generally of contractual force (TULRA 1974 - Section 18). The statement in paragraph 4 of the letter of 8th February 1991 is not accurate in referring to "a right to be represented by a trade union".

In the present case the right to be or to continue to be a member of a recognised trade union was not infringed. Indeed the Applicants continue to be members and after March 1991 ABP continued to negotiate with RMT so far as those continuing members were concerned.

Can one spell out of the wording of S.23(1)(a) a statutory right by an employee against his employer to be represented by his trade union in negotiations with that employer in relation to his pay and conditions of service and further - a necessary addition - a right to require that employer to negotiate with the trade union?

Prior to the repeal of Ss.11 to 16 of the EP(A) 1975 by S.19(b) of the 1980 Act, 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 S.23(1)(a), which derive from S.53 of the 1975 Act, 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.

It does not seem to us possible to redefine or increase any existing rights under S.23(1)(a) - by the abolition of a trade union right to recognition, or to reverse the coin - by giving an employer a right to de-recognise.

The right under S.23(1)(a) is unaffected. It must be construed as at the date of its introduction into the law.

In this we have followed the approach of Nicholls LJ in NCB v RIDGWAY at p.665G

where said -

"I turn to the subsequent legislation, prefacing my comments on this by observing that, since I have reached a clear view on the meaning of the relevant expression in the Act of 1978, strictly the terms of the subsequent legislation are not admissible as an aid to interpreting that expression. It is not suggested that the amendments made to sections 23 and 58 have operated to give the relevant expression a meaning different from the one it bore when enacted in 1978. Accordingly, amendments made by the Employment Acts 1980 and 1982 are not legitimate aids in the construction of the relevant expression, surviving unamended as it has in section 23(1)(a): see Kirkness v. John Hudson & Co Ltd [1955] A.C.696, per Viscount Simonds at pp. 710-712 and Lord Reid at pp.730-736."

One result of the existence of such a right would be that even where an individual employee for his own benefit was anxious and willing to enter into a fresh and individual contract of service, which gave greater benefits to an employer - eg by flexibility or increased productivity - for which the employer was prepared to increase pay, that employer could not negotiate such a fresh contract with that employee if he was a member of a trade union without incurring liability under S.23(1)(a) to the other members of his staff who are members of that trade union.

Section 23(1)(a) has caused and may well continue to cause problems. We will give leave to appeal and would welcome guidance. We share the difficulties which this Industrial Tribunal found in the wording of S.23(1)(a) - indeed we averted to this in ASSOCIATED NEWSPAPERS - but with due respect to the careful reasoning of this Industrial Tribunal in the latter parts of paragraph 11 of its Decision, for the reasons which we have given we find ourselves unable to accept the same view of the law as it now stands.

Finally, we turn to the last point made by Mr Elias based on WALFORD and MILES we accept his submissions that no contractual right to be represented by trade union could exist between employer and employee. It follows from this that if such a statutory right were to be created it would need to be created by the clearest possible language and not by mere implication. This argument seems to us to enforce the reasons which we have given above that the right under S.23(1)(a) is as to membership itself and not to such incidents as may arise from membership.

For the reasons we have given therefore the appeal is allowed and the Originating Application of each of these complaints must be dismissed. Leave to appeal.