The Court of Appeal has urged compromise after ruling that the former principal oboist of the Welsh National Opera (WNO) was unfairly dismissed.
In a decision which underlines the importance of an objective test when it comes to assessing artistic performance, the court ruled that the disciplinary procedure followed by the WNO prior to dismissal was ‘procedurally unfair’.
Murray ‘Sandy’ Johnston, an oboist with the WNO for 34 years, was dismissed after concerns were raised that the sound of his instrument did not ‘blend’ with the rest of the orchestra.
The Court of Appeal dismissed the WNO’s appeal against a ruling of the Employment Appeal Tribunal and Mr Johnston’s case will now return to an employment tribunal for the amount of his compensation to be assessed.
However, after pointing to the heavy cost of three previous contested hearing, Lord Justice Maurice Kay said: ‘I hope that the parties will give active consideration to the possibility of a negotiated settlement, if necessary through mediation’.
The judge, sitting with Lords Justice Moore-Bick and Sullivan, said it was ‘inevitable’ that it would be found that the disciplinary procedure to which Mr Johnston was subjected for his perceived artistic failings was ‘procedurally unfair’.
After doubts were raised about his artistic performance, Mr Johnston had satisfied assessors that his ‘intonation’ and ‘emission of sound’ were satisfactory during auditions.
However, he continued to face criticism of his perceived shortcomings in ‘ensemble’ situations and the ‘blending of sound’ between his instrument and the orchestra.
He was dismissed after the WNO said that that aspect of his playing could not be tested by audition, with only a pianist to accompany him, but only in ‘full ensemble conditions’.
Although the WNO purported to follow the disciplinary procedure laid down in its handbook, it did not comply with the opera's agreement with the Musicians Union, which was designed to protect musicians from ‘too subjective an assessment’ of their artistic performance.
Lord Justice Kay said: ‘To subject Mr Johnston to the handbook disciplinary procedure, minus the requirements of oral, written and final warnings, was procedurally unfair, even if the concern was to save him from additional stress’.
Ruling that the disciplinary procedure followed lacked the element of objectivity that would have made it fair, the judge concluded: ‘It was not a reasonable response to the problem that had arisen...I consider that a finding of procedural unfairness is inevitable’