Can the policy of a statute, as presumed from the political complexion of the government which introduced it, prevail over the language of the enactment itself when there is a need to interpret that language? This was one of the intriguing points to arise in Wilson v Associated Newspapers Ltd and Palmer v Associated British Ports Ltd [1995] The Times, 31 March.Their Lordships unanimously overruled the Court of Appeal's decisio n, reported at [1993] IRLR 336, ie that there is unlawful action short of dismissal on trade union grounds if an employer gives a higher pay increase to employees who accept personal contracts in place of collectively agreed terms for the purpose of deterring employees from remaining members of a union or penalising them for so doing.

In response to the Court of Appeal's ruling, the government amended the Trade Union & Labour Relations (Consolidation) Act 1992 to permit an employer to offer a 'douceur' (Dillon LJ) to those who agree to move on to personal contracts instead of collective bargaining arrangements, whilst denying the douceur to those who decline to change - even if the purpose is to deter those concerned from continuing as union members.The amendment was predictably controversial.

Yet a majority of their Lordships have now held that, 20 years ago, a Labour government removed an element of worker protection in this area, which had been introduced by the Conservative government in 1971: a curious state of affairs.In Wilson, each employer who was willing to sign an individual contract before a certain date was offered a backdated pay rise.

Those who were unwilling to sign were told that they could not expect any increase in pay until the new review of salaries.

In Palmer all unionised employees were offered the alternative of either entering into individual contracts, or of continuing under the existing regime of employment on whatever terms were agreed collectively.

The inducement to choose the former alternative was an offer made to each individual of a significant increase in pay.In each case, employees who refused to sign an individual contract complained that the employers had infringed s.23(1)(a) of the Employment Protection (Consolidation) Act 1978, which gives employees the right not to have action short of dismissal taken against them as individuals by their employer for the purpose of preventing or deterring them from being or seeking to become members of an independent trade union, or penalising them for doing so.

The employees succeeded at industrial tribunal hearings, but the employers' appeals to the Employment Appeal Tribunal were successful.

In each case, the Court of Appeal allowed the employees' appeals.A majority of the House of Lords held that the determination of a point of law which was not open to the courts below was decisive.

The courts below were bound by the decision of the Court of Appeal in National Coal Board v Ridgway (1987) ICR 641, ie that if an employer confers a benefit on one employee which it withholds from another, the omission to confer the benefit on that other may amount to 'action short of dismissal' taken against that other under s.23(1) of the 1978 Act.The employees contended that the relevant legislation has consistently outlawed discrimination in any form against employees on account of their union membership and that the language of s.23(1), even if not extended by definition to apply to omissions, should nevertheless be construed liberally.

However, Lord Bridge held that examination of the legislative history conclusively refuted that argument.

S.5 of the Industrial Relations Act 1971 had embodied just such an anti-discrimination policy, but the Trade Union & Labour Relations Act 1974 Act eliminated it.During the course of argument, Lord Bridge's line of reasoning was criticised as unduly literalistic: 'It was even submitted that the Labour government which introduced the Act of 1975 could not have intended to provide less effective protection for trade union memb ers than the Act of 1971.' He rejected that submission: 'It remains the golden rule of construction that a statute means exactly what it says and does not mean what it does not say.'An important link in the chain of reasoning relied on by the employees was the decision of the EAT in Discount Tobacco and Confectionary Ltd v Armitage [1990] IRLR 15.

Lord Bridge accepted that decision, but interpreted it narrowly.

The industrial tribunal in Armitage found that an employee had been dismissed by reason of her union membership after invoking the assistance of her union representative in pursuance of her complaint about various employment matters.

Knox J said: 'We see no genuine distinction between membership of the union on the one hand and making use of the essential services of the union on the other.'In Wilson and Palmer, Lord Lloyd said that it was an obvious inference from the evidence available to the tribunal in Armitage that the employee was dismissed because the employers resented the union intervening on her behalf.

However, Armitage does not establish a general proposition that membership of a union is to be equated with using the 'essential' services of that union.

According to Lord Lloyd, a union which has no collective bargaining agreement is unable to offer its members the service of negotiating their terms and conditions of employment, but is able to offer them 'other important and valuable services.

Thus, it cannot be said that the service of collective bargaining is an essential union service or that membership of the union unable to offer that service is valueless or insignificant.' Accordingly, the House of Lords held by a majority that the concept of 'membership' in the legislation is significantly narrower than Armitage seemed to suggest.