United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 431_94_0102

Appeal No. EAT/431/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MISS A MACKIE OBE

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MR A M DRANSFIELD          APPELLANT

TGWU          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY

OR REPRESENTATION

ON BEHALF OF THE

APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is a preliminary hearing of an appeal by Mr Alan Dransfield against the decision of the Industrial Tribunal held at Exeter on 11 April 1994. The decision was given in proceedings instituted by Mr Dransfield against the Transport & General Workers Union by an Originating Application presented on 15 June 1993. His complaint was of unjustifiable discipline by the union. The particulars of the complaint are set out in box 10 of his application.

The Union opposed the complaint and by an amended Notice of Appearance stated their case concisely as follows:

"The Respondents deny that they have unjustifiably disciplined the Applicant whether as alleged or at all. In particular the Respondents deny that the non-transfer of the Applicant's membership is discipline as defined by Section 64(2) of the Trade Union Labour Relations (Consolidation) Act 1992. All benefits, services and facilities of Union membership are and at all relevant times have been available to the Applicant and he suffers no detriment."

That was the issue which came for the decision of the Tribunal - whether he had been subjected to unjustified discipline contrary to the Act.

The unanimous decision of the Tribunal was that his application should be dismissed. Full Reasons for the decision were sent to the parties on 15 April. Mr Dransfield appealed by Notice of Appeal dated 21 April and set out a comprehensive list of grounds of appeal. His case was that the decision was perverse; that the union's witness had been guilty of perjury; that the Industrial Tribunal had misapplied the correct legislation; that there had been a breach of natural justice and that the Industrial Tribunal had been biased. On a separate page he gave further details of his complaint of bias.

The Appeal Tribunal set the appeal down for a Preliminary Hearing to determine whether the appeal raises an arguable question of law. A letter was sent to Mr Dransfield proposing to list the hearing for 15 September 1994. He replied to the letter on 26 August saying that he would not be available until early 1995 and therefore requested his case to be put aside until his return to the United Kingdom. His request was granted. On 10 January a letter was sent to the address from which Mr Dransfield wrote in Exeter, informing him that it was proposed to list his appeal for hearing in the period February/March 1995 and also that the Tribunal had a number of dates available in January. He was asked to let the Tribunal know if there were any dates in that period that should be avoided. The Registrar informed him that, unless she heard from him by 20 January, it would be assumed that all the dates were suitable for him and the appeal would be listed for hearing without further notice. No reply was received to that letter.

On 25 January Mr Dransfield was notified that the hearing would be listed today, not before 2 pm. The hearing time has arrived. Mr Dransfield has not appeared. Nobody has represented him and we have received no further letter or communication from him to explain his absence. In those circumstances we propose to deal with the appeal in his absence. It would be open to us to dismiss it simply on the ground that he has failed to attend, but, as we have read the papers and formed a view on the appeal in relation to the grounds that he states, we shall briefly give our reasons why his appeal should be dismissed. The Full Reasons of the Tribunal refer to the complaint under sections 64 and 65 of the 1992 Act and deal with the structure of the Union into regions and the history of Mr Dransfield's membership. He used to live in Boston, Lincolnshire and was a member of the local branch, branch 10. Some years ago he moved to Exeter, but took no steps to transfer his membership from branch 10 at Hull to the Exeter local branch, branch 3.

They gave an account of the facts they found in relation to a possible transfer of the membership of Mr Dransfield to the Exeter branch. The Tribunal referred to the areas of complaint by Mr Dransfield. The first was that he had suffered unjustifiable discipline by being expelled from the Exeter branch. In view of the facts found by the Tribunal that is an impossible argument. He had never been transferred from the Hull Branch to the Exeter branch. They referred to the detailed facts explained earlier about the proposed transfer and the regrettable mistake there had been and the lack of explanations provided, but they concluded that he could not bring a claim of expulsion from a branch which he has never belonged to.

Secondly, he complained of loss of benefits and that he had been subjected to detriment. On that part of the case the Tribunal rejected his complaint because they said, that on the evidence, there was no suggestion that Mr Dransfield would have been entitled to any benefits, services or facilities by reason of membership of the Exeter branch to which he would not have been entitled by reason of membership of the Hull branch. The only difference was a matter of convenience. That was not enough for him to bring a complaint under section 64.

They concluded in paragraph 17:

"It seems to us that the applicant has to be able to point to some benefit which he would have got if he had been a member of the Exeter branch which he did not get because he remained a member of the branch at Hull, and he cannot. We do not accept, therefore, that he has in fact been subjected to discipline within the statutory definitions on which he has to rely."

Finally, the Tribunal concluded that, even if they were wrong on that point, and he had been subjected to discipline, he had not been able to establish that it was unjustifiable discipline by reason of conduct coming within the exclusive list in section 65(2). They said, correctly in our view, that it was not enough for him to show that he was subjected to discipline. "Unjustified" discipline was defined. In order to be unjustified he had to bring it within the list. He was unable to do that. For all those reasons his claim was dismissed.

We have considered the Notice of Appeal. We are unable to find that any of the grounds stated by Mr Dransfield raise an arguable point of law. The complaint of perjury by a union witness cannot conceivably give rise to a point of law. It is a question of who is believed on the evidence and that is a matter for the Industrial Tribunal. As to the complaints that there had been misapplication of the correct legislation, it appears that the Tribunal referred to the correct provisions, correctly interpreted them and properly applied them to the facts which they found about the relationship between Mr Dransfield and the union.

The complaints of breach of natural justice and bias are not substantiated by any particulars in an affidavit. There is insufficient evidence on which we could find an arguable case to support those serious allegations.

Finally, he submits that the decision is perverse. For that to succeed he would have to show that no reasonable Tribunal, on a correct appreciation of the law and facts, could have reached this decision. This is a non-starter. The decision carefully sets out the evidence of findings of fact and correctly applies the relevant law.

For all those reasons we find that there is no point in this case proceeding to a full hearing as none of the grounds of appeal raise an arguable point of law. The appeal is dismissed.