The Supreme Court allowed the appeal of the continuing claimants in a dispute over salary and pension credit for a period when they were away from work during an industrial dispute. It held that the Ministers could not rely on a strike-based defence to continued non-payment after relying only on section 16 of the Civil Service Regulation Act 1956 in earlier proceedings.
The earlier case, Fuller (No. 1), challenged the Ministers’ removal of officials from the Department of Agriculture payroll during limited rolling industrial action. The courts ruled that section 16, which concerned disciplinary matters, could not be used to remove officials from the payroll in those circumstances.
In the later proceedings, the officials sought pay and pension credit for the period from removal from the payroll until their return to work after settlement of the dispute. The Ministers argued that the officials were not entitled to pay because they had gone on all-out strike. The High Court rejected the officials’ claims, and they appealed.
Writing for the Supreme Court, Clarke J. said the earlier proceedings had included a claim for restoration to the payroll. The Ministers’ statement of opposition relied on section 16 alone, even though the officials were already on full strike when it was filed. The Court said the Ministers could have pleaded that the strike was a separate basis for continuing non-payment, but had not done so.
Clarke J. concluded that it would be unjust to let the Ministers advance that different defence in the later case. The Court therefore allowed the continuing claimants’ appeal on estoppel or abuse of process grounds. It did not decide the wider questions about when employers may withhold pay during industrial action, saying those issues would not affect the outcome.
The proposed order would set aside the High Court judgment and declare that each continuing claimant was entitled to salary as if they had continued working from the date they were removed from the payroll until their return after settlement of the dispute. It would also provide for their pension rights for that period. The Court asked the parties to agree a specific form of order identifying the continuing claimants and setting out the declarations. The judgment does not specify that final form.