National Coal Board v Ridgway: CA 1987

The Board employed miners belonging to two rival unions, the National Union of Mineworkers (‘the NUM’) and the Union of Democratic Mineworkers (‘the UDM’), at the same colliery. The Board agreed to pay increased wages to members of the UDM but not to members of the NUM. On application by members of the NUM, the industrial tribunal had held that withholding the increase from the applicants was an ‘omission’ amounting to ‘action (short of dismissal) taken against’ them for the purpose of penalising them for being members of the NUM and thus was a contravention of section 23(1)(a).
Held: The application of the definition ”act’ and ‘action’ each includes omission and references to doing an act or taking action shall be construed accordingly;’ to section 23(1) has the effect that, if an employer confers a benefit on employee A which he withholds from employee B, the omission to confer the benefit on B may. if the circumstances warrant such a finding, amount to ‘action (short of dismissal) taken against’ B for one of the purposes prohibited by section 23(1) irrespective of the question whether B had any reasonable expectation of receiving that benefit.
May LJ: ‘There must, at the least, have been some obligation to pay or some expectation of receipt to enable one to categorise the non-payment of U.D.M. rates to these applicants as an ‘omission’ on the part of the board to make such payments.’
Nicholls LJ: ‘For an act to constitute ‘action’ within section 23 there does not need to be any reasonable expectation by the employee that the employer would not so behave. This being so, I see no justification for adding this requirement as a gloss on the language of the statute in the case of an ‘omission’. To be within section 23 the conduct complained of has to have been done ‘for the purpose of.’ If it is for one of the requisite purposes that an employer omits to do something vis-a-vis the complainant employee as an individual then, whatever is the nature of the omission, it is impermissible.’


Nicholls and Bingham LJJ, May LJ dissenting


[1987] ICR 641


Employment Protection (Consolidation) Act 1978 23(1)(a)


England and Wales

Cited by:

CitedAssociated Newspapers Ltd v Wilson; Associated British Ports v Palmer HL 31-Mar-1995
The Daily Mail had recognised the Union to which their journalists belonged. They wanted to end this arrangement, and offered a better rate of pay to non-members. The union said this was an unlawful action taken because of union membership. Similar . .
Lists of cited by and citing cases may be incomplete.


Updated: 31 July 2022; Ref: scu.251039