United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 865_93_0510

Appeal No. EAT/865/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 October 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS J W COLLERSON

MR P DAWSON OBE

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MR C G LANE          APPELLANT

N A L G O          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE OR

REPRESENTATION BY

OR ON BEHALF OF

THE APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an adjourned preliminary hearing of an appeal brought by Mr C.G. Lane against NALGO. He started the proceedings by presenting an application to the Industrial Tribunal on 1 December 1992. He complained of effective unjustified discipline by his union, NALGO. In the details in box 10 he went into considerable detail of his complaint that he had been effectively expelled from NALGO without any reason whatever being given, either by the branch or by NALGO's General Secretary.

The claim was contested by NALGO in a Notice of Appearance dated 14 January 1993, on a number of grounds: first, that Mr Lane had not been disciplined under the terms of section 3(5) of the Employment Act 1988; alternatively that the conduct complained of does not fall within that set out in the terms of section 3 (a) to (g) of the 1988 Act. Accordingly, he had not been unjustifiably disciplined. Thirdly, his claim was, without prejudice to these two points, time-barred under the provisions of section 4(2). Finally, it is stated that NALGO is prepared to reinstate Mr Lane's membership of the union in accordance with the Constitution and Rules of the union.

The matter came before the Industrial Tribunal held at London North on 21 July 1993 on a preliminary point as to whether the complaint was time-barred. Mr Lane did not attend the hearing and he was not represented. The Industrial Tribunal, for full reasons notified to the parties on 26 July 1993, concluded that the actions complained of were outside the three months' time limit prescribed by the 1988 Act. It went on to say that:

"There is no reason to suggest why he [the Applicant] did not present a complaint to the Industrial Tribunal [within the time limit]".

The Tribunal stated it had no jurisdiction to proceed to hear the application on the merits.

Mr Lane sought a review by letter of 2 August 1993. He did not attend the hearing of the review. The Tribunal refused to review for the reasons stated on 9 September 1993. The basis of the rejection of the request for review was that the issue had been fully explored at the Tribunal hearing and there were no grounds for review as laid down in rule 10 of the 1985 regulations.

Mr Lane appealed by Notice of Appeal dated 2 September 1993 against the decision that his application was out of time. The grounds of his appeal were that the Tribunal made an error in the application of the law relating to the procedure in his case, that the decision was contrary to the evidence and that the way in which the Tribunal dealt with his case. He complained of bias against him.

The appeal was set down as a preliminary hearing which came before the Tribunal first on 12 April 1994. The Tribunal decided to adjourn the hearing to enable Mr Lane to produce copies of three letters mentioned in a letter of 14 September 1993 to the Registrar of the Appeal Tribunal. The Tribunal, in a short judgment given by his Honour Judge Peppitt QC, stated that they were unable to find the letters which Mr Lane was referring to in the papers. They decided to adjourn the hearing so that Mr Lane could be invited to provide the Tribunal with copies of the three letters on which he relied. The letters could be considered by the Tribunal who could then decide whether or not they should be sent to the Chairman for his views as to whether or not the documents were before him. Until that was done the Tribunal could not give full and proper consideration to his appeal.

It is relevant to mention that Mr Lane was not present or represented at that preliminary hearing. Since then the letters have been provided to the Tribunal. There is a letter of 16 October sent by the Financial Officer of NALGO to Mr Lane saying that it was noted that he was an unemployed member of the Dartford & Gravesend Health Branch to whom the Financial Officer forwarded Mr Lane's cheque of £5 for his annual subscription for 1989/90. The branch had been advised to deal promptly with the matter and ensure that a receipt was forwarded to him. The letter concluded by saying:

"I shall be glad if in future you will forward any subscriptions to your branch treasurer"

The name and address of the branch treasurer was given.

There are two further letters referred to by Mr Lane, one of 10 February 1991 and a letter chasing the February letter dated 22 April 1991. It appears from the letter of 10 February 1991, that Mr Lane had not been forwarded a membership card, despite reminders in respect of his subscription. He wrote to enquire whether a card would now be sent to him for that year without further delay. He stated that he had not been notified, either by the General Secretary or the branch, that he had been expelled from NALGO, but said that, if he had been, would they tell him, and at the same time explain why. He referred to the procedures laid down for expulsion of members and enquired whether they had been followed in this case.

The matter was listed for an adjourned hearing. Mr Lane wrote to the Tribunal last month a letter dated 19 September, saying that he would not be able to attend the hearing. He requested confirmation that his letter and enclosures had been received and he formally requested that the hearing be postponed if the letter of 18 August, which he referred to, had not been received with the enclosures. He asked that his letter be placed before the Tribunal and included in the papers for the hearing whenever it took place.

The hearing came on today. As notified by Mr Lane in his letter of 19 September, he did not attend. The question is whether, in the light of the three letters made available to us but not available to the earlier Tribunal, an arguable case in law has been made out for this matter to go to a full hearing. Although we did not have the benefit of any representation on behalf of Mr Lane, Mr Bean, at the invitation of the Tribunal, has made some helpful submissions about points relevant to Mr Lane's appeal. In particular, he made this point that it might be argued, on behalf of Mr Lane, that the Tribunal decision contained an error of law in regarding Mr Lane's complaint as one of a "one-off" act, in which case a complaint must be brought within three months of the act complained of. He submitted that it was reasonably arguable that Mr Lane's complaint in this case was of denial or depravation of the benefits of membership of the union. It was not a "one-off" act such as expulsion might be. Deprivation of the benefits of membership, such as the issue of a membership card when he had paid his subscription, might arguably be regarded as a continuing act, of which he could complain as long as the act continued and for a period of three months after it had ceased. We are persuaded that there may be a reasonably arguable point on the difficult point that sometimes arises as to whether an act is a "one-off" act with continuing consequences, in which case the three months' time limit runs from that act taking place, or a continuing act in respect of which time does not begin to run while it continues.

For those reasons we shall allow this appeal to continue to a full hearing at which Mr Lane can attend or be represented and NALGO can be represented.

We say, in conclusion, that we hope that, if Mr Lane is not represented, he will attend the hearing to make clear to the Tribunal what his full arguments are in support of his appeal against the Tribunal decision that his claim was time-barred. We shall simply make an order that the appeal continues to a full hearing.