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Editorial Committee of the Cambridge Law Journal
Neutral Principles for EmployersAuthor(s): David HowarthSource: The Cambridge Law Journal, Vol. 46, No. 2 (Jul., 1987), pp. 227-229Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507020 .
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C.L.J. Case and Comment 227
Crumlin being paid more" (p. 1027). This indicates that employers in
future cases will need to show that the female claimant is paid fairly before succeeding on section 1(3). After all, a difference in pay which
undervalues the woman's job as well as overvaluing the man's is hardly
"necessary to achieving the objectives" of recruiting or retaining the
man. This result is particularly important for equal value claims, where
market forces defences are very likely to arise.
Arguably, any defence which allows a woman to be paid less than
her male equivalent risks allowing an insidiously discriminatory labour market to undermine the objectives of Article 119 and the Act.
(One wonders why all the private prosthetists were men!) But it is
submitted that the Rainey approach will, if rigorously applied, strike
an acceptable compromise with the economic value of a free labour
market.
Hazel McLean.
C.L.J. Case and Comment 227
Crumlin being paid more" (p. 1027). This indicates that employers in
future cases will need to show that the female claimant is paid fairly before succeeding on section 1(3). After all, a difference in pay which
undervalues the woman's job as well as overvaluing the man's is hardly
"necessary to achieving the objectives" of recruiting or retaining the
man. This result is particularly important for equal value claims, where
market forces defences are very likely to arise.
Arguably, any defence which allows a woman to be paid less than
her male equivalent risks allowing an insidiously discriminatory labour market to undermine the objectives of Article 119 and the Act.
(One wonders why all the private prosthetists were men!) But it is
submitted that the Rainey approach will, if rigorously applied, strike
an acceptable compromise with the economic value of a free labour
market.
Hazel McLean.
neutral principles for employers
The legal fall-out of the miners' strike of 1984-85 continues. Section
23(l)(tf) of the-Employment Protection (Consolidation) Act 1978
forbids an employer taking "action (short of dismissal). . . against [an
employee] as an individual for the purpose of preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so." The Court of Appeal, by a majority (Nicholls and Bingham L.JJ., May L.J. dissenting) has held that the National Coal Board contravened section 23(l)(a) in deciding to give pay increases at a particular colliery only to employees who
could show they were members of the breakaway Union of
Democratic Mineworkers, and not to those, including the applicants, who were members of the National Union of Mineworkers: Ridgway v.N.C.B. [1987] I.R.L.R. 80.
Major interunion disputes rarely come to court. Quarrels about
rights to organise certain groups of workers are normally dealt with by the T.U.C. using the Bridlington principles. Indeed, British industrial relations are peculiar in that nearly all unions belong to a single federation. British legislators, therefore, unlike their European and American counterparts, have not had much to say about competition among unions for members and organising rights. The Industrial Relations Act 1971 did volunteer to regulate such questions, but was
rebuffed, and since the 1980 repeal of compulsory recognition procedures, the law has returned to the self-help philosophy of
pre-1971. Fortunately the Bridlington principles have finally received
judiciai blessing in Cheall v. APEX [1983] 2 A.C. 180. The U.D.M., however, is not a member of the T.U.C.
neutral principles for employers
The legal fall-out of the miners' strike of 1984-85 continues. Section
23(l)(tf) of the-Employment Protection (Consolidation) Act 1978
forbids an employer taking "action (short of dismissal). . . against [an
employee] as an individual for the purpose of preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so." The Court of Appeal, by a majority (Nicholls and Bingham L.JJ., May L.J. dissenting) has held that the National Coal Board contravened section 23(l)(a) in deciding to give pay increases at a particular colliery only to employees who
could show they were members of the breakaway Union of
Democratic Mineworkers, and not to those, including the applicants, who were members of the National Union of Mineworkers: Ridgway v.N.C.B. [1987] I.R.L.R. 80.
Major interunion disputes rarely come to court. Quarrels about
rights to organise certain groups of workers are normally dealt with by the T.U.C. using the Bridlington principles. Indeed, British industrial relations are peculiar in that nearly all unions belong to a single federation. British legislators, therefore, unlike their European and American counterparts, have not had much to say about competition among unions for members and organising rights. The Industrial Relations Act 1971 did volunteer to regulate such questions, but was
rebuffed, and since the 1980 repeal of compulsory recognition procedures, the law has returned to the self-help philosophy of
pre-1971. Fortunately the Bridlington principles have finally received
judiciai blessing in Cheall v. APEX [1983] 2 A.C. 180. The U.D.M., however, is not a member of the T.U.C.
This content downloaded from 62.122.73.86 on Sun, 15 Jun 2014 08:16:52 AMAll use subject to JSTOR Terms and Conditions
228 The Cambridge Law Journal [1987]
The Board advanced several arguments that the E.AT.'s finding in their favour should stand. They began with a procedural point. The
Board had by now promised to pay the increases, fully backdated, to
the N.U.M. members. There was, therefore, the Board claimed, no
longer any active case; the question was "academic" (surely unfortunate terminology).
The applicants replied, first, that it was sufficient to keep the action
alive that there had been no agreement about the costs of the appeal.
Bingham L.J., citing Westminster City Councilv. Croyalgrange [1986] 1 W.L.R. 674, agreed, but May L.J.'s protest that this constitutes a
bootstrap argument must be correct. Second, many other claims
depended on the outcome ofthe case, and it would be unreasonable to
force litigants to start from scratch when a case was already in the
Court of Appeal. Bingham L.J. again agreed. Nicholls L.J., however,
rejected this point, without giving reasons, and May L.J. simply
ignored it. (See now Ainsbury v. Millington [1987] 1 All E.R. 929
(H.L.) where Lord Bridge stated (p. 931) that litigation which is not
"live" as between the parties may "conceivably" be allowed to go ahead if the proceedings are "instituted specifically as a test case".) Third, the applicants argued that they had suffered damage over and
above loss of wages, namely frustration and stress. May L.J.'s opinion was that such damages were not recoverable, and that Brassington v.
Cauldon Wholesale [1977] I.R.L.R. 479, which held otherwise, should
be overruled. Bingham L.J. expressed no opinion, resting his decision
on the first two points. Nicholls L.J., however, without passing
judgment on Brassington, said that since the third point was arguable either way, the present case should reach the merits.
On the third point "academics" might note, if the courts will not, that at the Report Stage of the Employment Protection Bill 1975, Albert Booth, Minister of State, said of what is now section 26 of the 1978 Act, the compensation section, "[T]he better solution seems to
be to empower tribunals to award compensation not just for financial
loss, but for infringement of rights and for general affront to an
employee. . . . This is comparable to the common law principle that
compensation is payable for defamation."
The "merits" were four questions. Was the Board's non-payment "action" within section 23? If so, was it taken against the N.U.M. members "as individuals," or only against their union? Was the Industrial Tribunal's factual determination perverse, that the Board's
purpose had been to penalise the applicants for N.U.M. membership? And finally, should "an independent trade union" be construed to include "a particular trade union" or should it, as the Board
contended, mean only "all trade unions"? The court held unanimously that "action" included "omission,"
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Case and Comment Case and Comment 229 229 C.L.J. C.L.J.
and that the applicants should succeed on the first question, but they disagreed as to the reasons. May L.J. said the 'somission" had to be a failure in some duty or to fulfill some legitimate expectation, which, fortunately, the applicants did have. Bingham and Nicholls L.JJ., however, refused so to limit "omission." They would look only to the employer's "purpose" in not treating all employees similarly.
Whether a penalty was directed purely against an individual or purely against the union itself is an old problem (Post Office v. Crouch [1974] I.C.R. 378, Carrington v. Therm-a-Stor [1983] I.C.R. 208). Both sides have defensible positions in such cases, for neither "purely" collective nor "purely" individual interests exist. Undermining unions invariably makes individual members more vulnerable; but weakening individuals also weakens tlje collective. The majority solution in Ridgway (May L.J. dissenting) is that since employees receive wages through their individual contracts, which, though influenced, are not constituted by collective bargains, pay discrimination is "individual." The majority assumed that this would exclude Crouch, where the applicants complained only that they were refused facilities for union activities. But this is not necessarily so. City and Hackney H.A. v. N.U.P.E. [1985] I.R.L.R. 263 shows that agreements to provide unions with facilities are capable of incorporation into individual contracts.
The third point, perversity, failed, as it usually does The fourth point is the crux of the case. Is it wrong for employers to favour one union over another? Or is the only recognised wrong opposing all unions? Does the law support pluralism or exclusivity? The former promotes freedom of choice, the latter orderly collective bargaining. The court unanimously chose pluralism-"an independent trade union" equals "a particular independent trade union," not "all independent trade unions." Section 23 rights protecting active trade unionism are valueless, said Bingham L.J., if the employer can choose the union.
Nevertheless the judges relied primarily on verbal rather than consequential reasoning. Perhaps prudently, they eschewed discussions of underlying principle. In truth, British labour law has not chosen clearly between pluralism and order. If, however, the T.U.C. were to break up, which is not impossible, such a choice would have to be made.
DAVID HOWARTH.
RES GESTAE IN THE HOUSE OF LORDS: CONCOCrION OR DISTORTION?
IN Andrews [1987] 2 W.L.R. 413 the House of Lords has considered the res gestae exception to the rule against hearsay. Lord Ackner, who
and that the applicants should succeed on the first question, but they disagreed as to the reasons. May L.J. said the 'somission" had to be a failure in some duty or to fulfill some legitimate expectation, which, fortunately, the applicants did have. Bingham and Nicholls L.JJ., however, refused so to limit "omission." They would look only to the employer's "purpose" in not treating all employees similarly.
Whether a penalty was directed purely against an individual or purely against the union itself is an old problem (Post Office v. Crouch [1974] I.C.R. 378, Carrington v. Therm-a-Stor [1983] I.C.R. 208). Both sides have defensible positions in such cases, for neither "purely" collective nor "purely" individual interests exist. Undermining unions invariably makes individual members more vulnerable; but weakening individuals also weakens tlje collective. The majority solution in Ridgway (May L.J. dissenting) is that since employees receive wages through their individual contracts, which, though influenced, are not constituted by collective bargains, pay discrimination is "individual." The majority assumed that this would exclude Crouch, where the applicants complained only that they were refused facilities for union activities. But this is not necessarily so. City and Hackney H.A. v. N.U.P.E. [1985] I.R.L.R. 263 shows that agreements to provide unions with facilities are capable of incorporation into individual contracts.
The third point, perversity, failed, as it usually does The fourth point is the crux of the case. Is it wrong for employers to favour one union over another? Or is the only recognised wrong opposing all unions? Does the law support pluralism or exclusivity? The former promotes freedom of choice, the latter orderly collective bargaining. The court unanimously chose pluralism-"an independent trade union" equals "a particular independent trade union," not "all independent trade unions." Section 23 rights protecting active trade unionism are valueless, said Bingham L.J., if the employer can choose the union.
Nevertheless the judges relied primarily on verbal rather than consequential reasoning. Perhaps prudently, they eschewed discussions of underlying principle. In truth, British labour law has not chosen clearly between pluralism and order. If, however, the T.U.C. were to break up, which is not impossible, such a choice would have to be made.
DAVID HOWARTH.
RES GESTAE IN THE HOUSE OF LORDS: CONCOCrION OR DISTORTION?
IN Andrews [1987] 2 W.L.R. 413 the House of Lords has considered the res gestae exception to the rule against hearsay. Lord Ackner, who
This content downloaded from 62.122.73.86 on Sun, 15 Jun 2014 08:16:52 AMAll use subject to JSTOR Terms and Conditions
