United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 734_95_0410

Appeal No. EAT/734/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th October 1995

Before

THE HONOURABLE MR MAURICE KAY

MISS J W COLLERSON

MR S M SPRINGER MBE

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NACODS          APPELLANTS

A GLUCHOWSKI          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS J EADY

(of Counsel)

Messrs Stephens Innocent

Solicitors

21 Fetter Lane

London EC4A 1AP

For the Respondents MR R PAYNE

(of Counsel)

Messrs Hopkins & Sons

Solicitors

Eden Court

Crownhill Drive

Mansfield

NG14 7AE


 


MR JUSTICE MAURICE KAY: The appellant in these proceedings is the National Association of Colliery Overmen Deputies and Shotfirers (NACODS), and the respondent is Mr Gluchowski.

Mr Gluchowski worked in the mining industry in Nottinghamshire, and became a member of, and later Branch Secretary and an Executive Council member of the Midland Area Association of NACODS.

NACODS is a Trade Union with a federal structure, comprising various area associations.

It is well known that in the recent past there has been a run down of the mining industry. In response to this the Midland Area (which we will refer to as Midland), decided to acquire or form a company called Keelglen Limited to act as a short-term employment agency through which miners loosing their jobs as part of the run down could be provided with mining work in other pits where the run down was taking place. It appears that Keelglen Limited was the brainchild of Midland, but it was found in the Industrial Tribunal that it came to operate on a national basis.

Mr Gluchowski became a director of Keelglen, a position which he occupied between February and December 1994, which is the period with which we are concerned.

The acquisition and/or formation of Keelglen was controversial within NACODS, and at the national level and through its General Secretary, Mr MacNestry, there was concern about whether Midland's activities via Keelglen might prejudice the legal independence of NACODS.

On 14th March 1994, an instruction went from NACODS to Midland requiring Midland to withdraw from its links with Keelglen. We are unaware of any reply to that instruction. On 24th April 1994 a special national conference of NACODS was held and resolutions were passed to deal with the situation in Midland, and in connection with Keelglen. Those resolutions read as follows:

"That this conference considers that the Midland Area of the Association in not complying with the lawful directions of the National Executive Committee as contained in their letter of 14th March 1994, be suspended until:

1. All Midland Area support for the company Keelglen be withdrawn.

2. All Midland Area money used to establish this company be returned to the Midlands Area.

3. Evidence be provided to the National Executive Committee that all decisions, resolutions, or recommendations made by Midland Area executive committee members who were also company directors of Keelglen be rescinded.

4. Until annual conference further decides the outcome."

The second resolution passed that day was in the following terms:

"That this conference considers the Midland Area to be in breach of Rule 4 in respect of retaining members who by rule should be members of the Leicestershire Area, and this conference votes to suspend from membership of the National Association the Midland Area as per Rule 19(A)(2) until:

(a) The Midland Area rescinds its decision in respect of Leicestershire members and make good any loss to the Leicestershire Area or;

(b) The annual conference will further decide the outcome."

That second resolution had as its genesis the fact that some Midland members had gone to work in a new pit at Asfordby which appears to have been on the borders of the Midland and the Leicestershire Area and there was conflict about that.

In the events as they have unfolded we do not propose to give that aspect of the matter further consideration.

The first resolution of 24th April 1994 had referred to "further decision by annual conference" and that duly occurred at the annual conference which took place between 20th and 22nd June 1994. There was consideration of the situation as it then stood. The minutes of that conference refer to the National Secretary expressing the following view:

"The Midland Area could not come back in to the Association until such time they complied with Section 5. The NEC had always said they would act within the rules as far as possible, but where the law came in then people had to take cogniscence of the law; six months was in the rule book, but in this case the Area had gone outside the rule book and outside the law."

The resolution passed at the annual conference in June 1994 was in the following terms:

"That this conference notes that the Midland Area have not complied with the decisions of the special national conference convened on 24th April 1994, and agree that the suspension of the Midland Area be maintained until such time as those decisions are complied with."

At this stage it is necessary to make reference to the Rules of NACODS, and in particular to Rule 19 which is headed:

"Suspension or Expulsion of an Area, Branch or individual member of an Area Association."

The rule is in the following terms:

"Any area association, branch or individual member of any area association which or who shall:-

a) refuse to accept the rules of the association;

b) refuse to carry out lawful directions, regulations and orders or the National Executive Committee:

(i) may be expelled from the association by Resolution of National Conference and upon such resolution being passed membership of such area association, branch or individual member shall automatically cease; or

(ii) may by a like resolution, be suspended for a period not exceeding six months in which case such area association, branch or individual member shall cease to enjoy the privileges of membership during the period of suspension."

It will be observed from that rule that the express power of suspension is for a period not exceeding six months.

Although Keelglen ceased trading in June 1994, there seems to have been little or no meaningful communication between NACODS and Midland or Mr Gluchowski during the remainder of that year. However, he continued to pay his contributions to Midland which received them as agent for NACODS but did not at that time remit to Head Office.

The original resolutions having been passed on 24th April 1994, six months expired on 24th October 1994. Soon after that in November Mr Gluchowski issued an originating application under Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992, which provides a remedy if a person has been excluded or expelled from a Trade Union. Such a remedy is without prejudice to other remedies which he may have, including those existing under Section 64 of the same Act in connection with unjustifiable discipline and any existing at Common Law.

The essence of the application to the Industrial Tribunal was that the applicant had been excluded or expelled.

For the sake of historical completeness I should refer to the fact that quite close in time to Mr Gluchowski's application to the Industrial Tribunal, NACODS itself was making an application to the Certification Officer to consider the withdrawal of Midland's Certificate of Independence. The outcome of that application was that on 8th February 1995 the Certification Officer decided that there was basis for him to withdraw the Certificate of Independence. However, as is customary, there are no written reasons for that decision and it is not possible for us to second guess them.

The application to the Industrial Tribunal was heard on 3rd and 4th May 1995 and resulted in a reserved decision. The unanimous decision of the Tribunal was that the complaint of Mr Gluchowski was well founded and the Tribunal declared that he was excluded or expelled from the NACODS in contravention of Section 174 of the Act. It is against that finding that NACODS appeal to this Tribunal.

In her submissions on behalf of NACODS, Ms Eady has presented her case under three headings, and it is appropriate for us to deal with them in her order.

1. "Suspension" and "Exclusion"

The essence of Ms Eady's first submission is that as a matter of law Mr Gluchowski could not bring himself within Section 174 because, she says, that section deals simply with exclusion or expulsion from a Trade Union and not with suspension.

In considering a similar submission, the Tribunal came to the conclusion that in the circumstances of this case "exclusion" embraced suspension as it effected Mr Gluchowski. In Paragraph 20 of the decision the Tribunal stated as follows:

"Section 174 (1) of the Act refers to an individual who is excluded or expelled from a trade union. At first sight exclusion appears to cover an individual who is not allowed to become a member and expulsion to refer to an individual whose membership is terminated. On consideration however the definition of exclusion must be wider. If it were not so, a trade union by imposing a permanent suspension could argue that an individual has neither been excluded or expelled. Exclusion must include exclusion from the benefits of membership and the ability to make use of any of its privileges. Although National denies that the applicant is still a member be does not appear to have been given notice of termination of membership on the 1 November. The Tribunal concludes that he has been excluded. ..."

In addressing this finding Ms Eady seeks to sustain a distinction between exclusion from a Trade Union which is covered by Section 174 and exclusion from some or all of the benefits of membership. In this context it has to be recalled that at the material time Mr Gluchowski was still paying his contributions and, moreover, if he had complied with the terms of the April and June resolutions he would have automatically been restored to all the benefits of membership without further application to become a member.

The reasoning of the Industrial Tribunal appears to be based on a fear of what would be the case if suspension was in effect permanent. That concern would of course extend to a series of tactical suspensions. In our judgment, that concern of the Tribunal was misplaced. As we have stated the remedies available in respect of Section 174 are without prejudice to other remedies which a member may have. It seems to us that the kind of situation referred to by the Tribunal would, in very many cases, lead itself to remedy by other routes. We have to consider the strict words of the statute and ask ourselves the question, so far as this submission is concerned, did the events which we have described amount to an "exclusion" from a Trade Union.

We have been referred to the recent decision of the House of Lords in Association Newspapers Ltd v Wilson and Associated British Ports v Palmer & Others , conjoined appeals reported in 1995 ICR 406 HL. Whilst we do not think that the case is directly on the point with which we have to deal, we do find it significant that in some of the speeches in the House of Lords, their Lordships draw the distinction between Trade Union membership and the enjoyment of the benefits of Trade Union membership. At 418 Lord Bridge of Harwich dealing with the decision in Discount Tobacco & Confectionary Ltd v Armitage said this of a passage in that case in the judgment of Knox, J,:

Page 418 C "... But if the passage cited is held to establish as a general proposition of law that, in the context of section 23(1) (a) and section 58(1)(a) of the Act of 1978, membership of a union is to be equated with using the "essential" services of that union, at best it puts an unnecessary and imprecise gloss on the statutory language, at worst it is liable to distort the meaning of these provisions which protect union membership as such."

There is a further reference of a similar kind in the speech of Lord Lloyd of Berwick at pages 424 G to 425 where it is stated:

"... But like Lord Bridge of Harwich, I cannot regard the case as authority for the broad proposition that membership of the union and the making use of the union's services are in some way to be equated. In my view, section 23(1)(a) was intended to protect trade union membership as such, that is to say, the right to associate as members of an independent trade union, just as section 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words "or making use of the essential services of the union" in section 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as the same thing. They do not mean the same thing in section 23(1)(c). So why should they mean the same thing in section 23(1)(a)?"

As we have indicated we do not find that case to be on all fours with the present appeal. However, we do find some assistance in the approach of their Lordships.

Having regard to the continued payment of contributions, and to the fact that restoration to full benefit could have occurred without further application for membership, we have come to the conclusion that Ms Eady's submission on this first point is well founded, and we take the view that paragraph 20 in the decision of the Industrial Tribunal is wrong in law. In our judgment, "exclusion" refers to a refusal to admit and not to suspension. We further consider that this narrower interpretation accords more with the history of this statutory provision.

2. "Expulsion"

Section 174 is not limited to exclusion. It refers also to an individual who has been "expelled" from a trade union. At this appeal the primary submission on behalf of Mr Gluchowski is that he was not in fact expelled and NACODS have also taken the view throughout that there was no expulsion.

The Industrial Tribunal found that there was expulsion in this case, the relevant findings being in paragraphs 20 and 22. In paragraph 20 it is stated:

"... The Tribunal concludes that he has been excluded. Alternatively if National takes the view that he has ceased to be a member he must have been expelled because certainly he has not resigned or left by agreement."

We should add that if National were taking the view that he had ceased to be a member it was because of some perception and arguably misinterpretation connected with the payment of contributions or lack thereof, rather than for any other reason.

Paragraph 22 reads as follows:

"National rightly or wrongly felt that the involvement of Midland in the activities of Keelglen was undermining the authority of National. National had not been kept properly informed and National had grounds upon which to be concerned. A suspension was the subject of a resolution of a National conference but there was no power to extend the suspension beyond 6 months. On the expiration of 6 months the applicant ought to have been allowed to resume his position as full member of National but as a result of a breach by National of its own rules his suspension has been continued or if he is no longer to be regarded as a member of National he must have been expelled."

There is no evidence that positive steps were taken by NACODS to expel Mr Gluchowski. In dealing with the finding of the Industrial Tribunal on question of expulsion, Ms Eady has approached it on the basis that if there was such an expulsion it must have been in the nature of a constructive expulsion akin to constructive dismissal in employment cases. We observe that in Section 174 there is no specific provision about constructive expulsion of a kind that one gets in connection with constructive dismissal in Section 55 of the other Act.

We, for our part, have some doubt as to whether constructive expulsion falls within Section 174 in any event. However, Ms Eady declined our invitation to pursue that argument. What she says is that if there is to be finding of expulsion, it must be on the basis that there was a fundamental breach of contract on the part of NACODS which caused a constructive expulsion. This, she rightly points out, could only be so as a matter of Contract Law if that fundamental breach were accepted by Mr Gluchowski as putting an end to the contract. Once again she refers to the continued payment of contributions, and submits that at no stage did Mr Gluchowski accept an alleged repudiatory breach so as to put an end to the contract and nor was there any indication at any stage that he had done so or might do so.

Once again, we find ourselves respectfully disagreeing with the legal conclusion of the Industrial Tribunal as we have set it out. It seems to us that there is no evidence in this case of direct expulsion, no resolution of expulsion, no notice or notification of expulsion. If constructive expulsion is capable of falling within Section 174, there is no evidence that steps were taken by Mr Gluchowski of such a kind as would have enabled the alleged repudiatory breach to be converted into a termination of the contract as a constructive expulsion.

It follows from the findings that we have made in relation to the first two headings, that in our judgment the decision of the Industrial Tribunal to the effect that Mr Gluchowski was excluded or expelled in contravention of Section 174 cannot stand and that this appeal must be allowed on both those grounds.

3. "Conduct"

Section 174 does not apply to all exclusions and expulsions from Trade Unions. It is specifically provided in subsection 2 that:

"(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if)-

...

(d) the exclusion or expulsion is entirely attributable to his conduct."

This provision led to a dispute in the Industrial Tribunal that has been further ventilated before us. The case put forward on behalf of NACODS was that the suspension was entirely attributable to the conduct of Mr Gluchowski. This contention did not find favour in the Industrial Tribunal. Paragraph 23 of their decision is as follows:

"23. It is, therefore, impossible to say that the exclusion or expulsion of the applicant was entirely attributable to his conduct. It is due to the steps taken by National in breach of its own rules."

It is clear to see what the Tribunal had in mind. Because the rules did not provide for suspensions in excess of six months, and because of Mr Gluchowski's complaint was confined to events after the expiration of the first resolution by a period of six months, the Tribunal was taking the view that the matters of which Mr Gluchowski was complaining were entirely attributable to the Unions' breach of its own rules rather than to his conduct. We have found this to be a difficult matter and have come to the conclusion that having regard to our findings under the first two headings of the appeal and the inevitable allowing of the appeal that follows there from, it is not necessary for us to make any finding in connection with this third heading, and we shall not do so.

Before we leave this case, there are three general matters on which we feel inclined to make observations. The first is that we were told half way through the heading that Mr Gluchowski is no longer in dispute with NACODS as to his membership, in that he has been enjoying full membership benefits since notification of the Industrial Tribunal decision. This has caused us to wonder from time to time whether there was any great purpose in this appeal, although Ms Eady tells us that quite apart from any possible issue as to compensation, NACODS and indeed other unions are interested in this Tribunal's interpretation of the words "excluded or expelled" in Section 174.

The second observation is that as we have noted earlier in this judgment, there will be many cases where events of the kind which concern Mr Gluchowski in this case will lend themselves to appropriate remedy, either at Common Law in the ordinary courts, or pursuant to other parts of this statute. Our decision has simply been concerned with whether the facts of this case as a matter of law come within Section 174.

The third and final observation is that although we are allowing this appeal, we do not intend any criticism whatsoever of the Industrial Tribunal which appears to have struggled manfully with a difficult case and without the assistance of any authorities upon complicated statutory provisions. They ought not to feel criticised in any way.