United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 865_93_1309

Appeal No. EAT/865/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th September 1995

Before

HIS HONOUR JUDGE J HICKS Q.C.

MRS P TURNER OBE

MR R H PHIPPS

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MR C G LANE          APPELLANT

UNISON (FORMERLY NALGO)          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO ATTENDANCE OR

REPRESENTATION BY APPELLANT

For the Respondents MISS N ELLENBOGEN

(of Counsel)

Mr B Piper

Director of Legal Services

UNISON (Formerly NALGO)

1 Mabledon Place

London WC1H 9AJ


 


JUDGE HICKS Q.C.: The appellant Mr Lane brought an originating application against the respondents who were then NALGO under what is now Section 64 of Trade Union and Labour Relations (Consolidation) Act 1992 to the effect that he had been unjustifiably disciplined by the Union. That complaint was received by the Industrial Tribunal on 1st December 1992 and there was a hearing of a preliminary issue, namely the issue whether that application was within or outside the appropriate three-month time limit for application to the Tribunal, and whether the Industrial Tribunal therefore had or had not jurisdiction.

The hearing of that preliminary issue was on 21st July 1993, and the decision of the Tribunal promulgated on 26th July 1993 was that it had no jurisdiction, the application being out of time, and full reasons were given for that decision, which after reciting the statute and the date of the lodging of application dealt with the substance in paragraphs 4 and 5. I should say that the applicant had not attended that hearing and has not been able to attend any of the hearings in the history of this case before either the Industrial Tribunal or the Employment Appeal Tribunal. He has been meticulous in informing the relevant Tribunal beforehand of his inability to do so, and his reason has normally been - perhaps always, I am not quite sure - that he needs to look after his aged parents and has not been able to find anyone satisfactory to take his place. In those circumstances the Tribunal in their reasons say as follows in paragraphs 4 and 5:

"4 The Tribunal considered the voluminous correspondence submitted to the Tribunal by the Applicant. The Tribunal considered Exhibit R1, letter dated 5 July 1993 to ACAS. This refers to alleged actions by the Respondent in not supplying the Applicant with a membership card for 1989/1990, when asked to do so, and it refers to action that took place in 1990/1991.

5 The actions complained of are clearly outside the three months' time limit prescribed by the Employment Act 1988."

The appellant lodged a Notice of Appeal dated 2nd September 1993 on three grounds. The first can be summarised as error in applying the law as to procedure. The second was that the decision was contrary to the evidence, and the third alleged bias. He also applied to the Industrial Tribunal for a review of their decision and that application was rejected by the Chairman for reasons which were given on 9th September 1993 and those reasons address, as it seems to us, essentially the same point as is raised in ground 3 of the Notice of Appeal, that is to say bias, and the Chairman dealt with that matter in these terms:

"1 The Tribunal was not annoyed or inconvenienced by the fact of the Applicant's non attendance but dealt with another case prior to 12.30 p.m. The Tribunal clerk telephoned the Applicant at the instructions of the Chairman out of courtesy to make sure that the Applicant was not going to attend the hearing although the Applicant had informed the Tribunal that he would not be attending. It is not unknown for parties to change their minds regarding non attendance."

"2 The issue was fully explored at the Tribunal hearing. The interests of justice do not require a Review. There are no grounds for a Review of this case as laid down by Rule 10(1) of the 1985 Regulations."

The history of the appeal is that there was a preliminary hearing on 12th April 1994, and what concerned this Tribunal on that occasion was that, in what amounted to particulars or skeleton argument under ground 1, the error in applying the law as to procedure, the appellant had complained that the Industrial Tribunal having through its officers promised to place before the panel of the Tribunal conducting the hearing a full set of correspondence had failed to ensure that three particular letters were before the Industrial Tribunal, and this Tribunal as then constituted on 12th April 1994 ordered that the appeal be adjourned to enable the appellant to produce copies of those three letters, and reasons were given for that decision which we do not think it necessary to recite at this stage.

There was then an adjourned preliminary hearing before a differently constituted Employment Appeal Tribunal on 5th October 1994, at which Mummery, J. the President, giving the decision and reasons of this Tribunal and having recited the history of the application and the appeal to date said this:

"... 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. [I interpose that Mr Bean would appear to have functioned in effect as an amicus curiae] 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 deprivation 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."

and that is the hearing before us.

Again, Mr Lane has not been able to attend having explained in advance his inability to do so and his reasons. He has however drawn our attention to the arguments he wishes to put forward and in particular to two letters; one of 19th March 1994 which he asks us to consider as his skeleton argument on the original grounds of appeal, and one of 26th November 1994 which he asks us to consider as his skeleton argument, together with the bundle of documents referred to in it, on the additional ground referred to in the judgment of the President.

We deal first with that last ground. I have read the relevant paragraphs of the reasons of the Industrial Tribunal. Those short paragraphs give their reasons as far as what one might call the `date issue' is concerned. They then go on to deal in paragraph 6 with the question of whether it was reasonably practicable for the complaint to have been presented in time, and about that they say:

"... The Tribunal noted that the Applicant was in constant correspondence with the Respondent concerning this matter. He pursued his complaint vigorously. The Respondent appears to have replied reasonably to these letters. There is no reason to suggest why the Applicant did not present a complaint to the Industrial Tribunal. He could easily have done so."

We are not concerned today with that point of whether it was `reasonably practicable', but I read that paragraph in fairness to the Industrial Tribunal in so far as it may indicate that their consideration extended beyond the bare matters to which they referred in paragraphs 4 and 5.

Now the situation before the Industrial Tribunal so far as the complaint was concerned, was that question 1 of the Notice of Application which requires the type of complaint to be stated is answered by the appellant in these words: "Effective unjustifiable discipline by my Trade Union" and then, in answer to question 10 for full details of the complaint, he starts off by saying:

"(1) My complaint is that I have been effectively expelled from NALGO ... At the same time and quite incredibly, neither of them has actually told me that I have been expelled ..."

He then goes on to give a number of further details and in particular he, as it were, anticipates the possibility of the time limit jurisdiction point being taken against him and gives a number of answers to that.

In the Notice of Appearance by the Respondents, the grounds given for resisting the application are as follows:

"1. The Applicant has not been disciplined under the terms of Section 5(5) Employment Act 1988 or at all.[I interpose that that Act preceded the 1992 Act to which I have referred and in our understanding there is no material difference between the provisions of the two Acts.]

2. In the alternative, the conduct complained of by the Applicant does not fall within that set out in the terms of Section 3(3)(a)-(g) Employment Act 1988 and accordingly the Applicant has not been unjustifiably disciplined under the terms of Section 3(1) and (2) Employment Act 1988."

Then they deal with the time-bar point, and finally in point 4:

"4. The Respondent is prepared to reinstate the Applicant to membership of the Respondent Trade Union in accordance with the Constitution and Rules of the Union."

The apparent significance of paragraph 4 is that they, on the fact of it, are not accepting that he is a member at the moment. But the significance of paragraphs 1 and 2 of that Notice of Appearance is that the respondents seem to be accepting, as we think is correct, that although the applicant had used the words "effectively expelled" at the outset of his details of his complaint, the complaint itself and the matter which they had to deal with was broader and was the general one of unjustifiable discipline by the Trade Union, which comes under various heads in what is now Section 64(2) of the 1992 Act, of which expulsion is head (a) but there are others, and I need not read them all, but one for example is (c):

"(c) sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose."

(d) may be summarised as deprivation of "benefits, services or facilities provided by virtue of membership" and (f) is a general sweeping-up provision: "(f) he should not be subjected to some other detriment;"

It seems to us that on the face of paragraphs 4 and 5 of the Tribunal's reasons, and in particular their reference three times to the word `actions', they were considering the question of the time limit in terms of specific acts or omissions at particular dates complained of by the applicant. Miss Ellenbogen, who has very helpfully addressed us on behalf of the respondent, has reminded us of the decision of the Court of Appeal in Retarded Children's Aid Society v Day [1978] ICR 437, and in particular to the paragraph of the headnote which reads:

"Per curiam. The Employment Appeal Tribunal's function is to correct errors of law and the fact that its members would decide a case differently does not mean that they can overrule an industrial tribunal who have not misdirected themselves."

and then to a passage in the judgment of Lord Denning M.R. at page 443 in which after referring to a suggestion that the Industrial Tribunal had overlooked a relevant provision in a code of practice he said at letter D:

"... I cannot believe that they overlooked it. I should have thought that the industrial tribunal would have had the Code of Practice on the table before them all the time and they would have had the words of Sir John Donaldson in mind. It is true that the tribunal did not mention those matters specifically in their reasoning: but it does not mean that they did not have them in mind or that they went wrong in law. I go further. If you read their reasons in a broad sense, it seems to me exceedingly likely that they did have those points very much in mind. [Then he refers to passages in which the tribunal, in his view, gave indications of having the point in mind, and then at letter G he goes on:] ... So, reading between the lines, it seems to me that, although not stated explicitly in the reasons, this tribunal very probably did have all the considerations in mind which it is suggested they may not have had.

I would add this. This decision is entrusted in the ordinary way by Parliament to the tribunal. I do not think it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning. Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the Employment Appeal Tribunal should not interfere with their decision even though they would themselves have come to a different decision. ..."

In the judgment of Lord Russell of Killowen, who agreed, appear these sentences:

"... I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and oral evidence have taken a different view form that of the industrial tribunal, searching around with a fine tooth comb for some point of law."

We accept of course the authority of that decision, but we think that the references to reading the reasons of an Industrial Tribunal in a broad sense and not assuming that they have overlooked some matter because they have not specifically referred to it, have to be seen in the context of the other and main point made by the Court of Appeal in that decision, that it is not for this Tribunal to interfere with decisions of the Industrial Tribunal even though the Employment Appeal Tribunal would have come to a different decision had they been hearing the case. It is pretty plain on the basis of the extracts that I have read that the Court of Appeal, in effect, was deprecating an attitude in this Tribunal of seeking in substance to substitute their own view for that of the Industrial Tribunal by finding some `nit-picking' point of omission.

In the present case we are very far from wishing to substitute any view of our own for that of the Industrial Tribunal, and we ask ourselves, reading the reasons of the Industrial Tribunal in Lord Denning's words "in a broad sense", whether on a fair construction it is appears that they had in mind, despite the lack of express reference, the question whether the matter of complaint was or included matters which were a continuing state of affairs rather than a specific action. Now it is material for this purpose to refer to a passage in the Notice of Application, in which I have already indicated the appellant expressly anticipated the possibility of an objection on the basis of his application being outside the time limits, and gives his arguments on that point, and among other things he says in that section:

"(i) My branch are still in possession of my membership subscription for 1989/90 ... I have not received Membership Cards for either of those years [because he has referred to 1990/91 as well, and I will come back to the subscription point as far as the later year is concerned]"

It seems to us that it is plainly arguable that in those words the appellant may be raising the point that the obligation to supply membership cards for a year in respect of which subscription has been paid and accepted is a continuing obligation even after the year has past. What perhaps is rather more explicit is that later on in what he heads as part (ii) of this section of his application he says:

"(ii) Neither my branch nor the General Secretary has told me as yet that my effective expulsion from NALGO is the result of a disciplinary decision made by NALGO. From the letters I have received my effective expulsion would appear to consist purely and simply of NALGO effectively refusing to renew my membership ..."

Then later on in a copy of a letter to the General Secretary of 27th November 1992 which he incorporates in his Notice of Application he has asked the General Secretary to have his subscription for 1989/90 returned to him plus interest, on the basis that he has not had the benefit of membership for that year. Later on he says: "they are still in possession of my subscription for 1990/91". The facts of the subscription 1990/91 are not totally clear but what does seem to be clear is that the appellant paid that subscription to the Head Office of the Union, and did so during the relevant year and that the Head Office returned that payment to him as late (I think) as 1992, but that he also, by way of precaution, sent a further cheque for the same subscription to the branch treasurer and he alleges - and this is all we have to go on because we have no other evidence about the matter - in a letter of 20th July 1992 that that cheque had still not been presented to his bank for payment. So again it would seem that it may at least be arguable that he is complaining that the Union is not making his position as to membership for 1990/91 clear one way or the other and that is a continuing failure still being complained of on 20th July 1992 and indeed still obtaining at the date of his application to the Industrial Tribunal.

In that letter of 20th July 1992 he also, writing to the General Secretary, says:

"I shall not send you my subscription for 1990/91 again unless and until you notify me that you are prepared to accept it. This does not mean, of course, that I do not wish my membership to continue. I must make it absolutely clear once again for the record that I wish to remain a member of NALGo and that as soon as you notify me that you are prepared to accept my subscription on behalf of my branch I will send you a cheque to cover my subscriptions for 1990/91 and the current year."

As we understand it, it is the respondent's position that subscriptions are properly payable and only payable to the branch and not to Head Office, and no doubt that is a matter that would have to be considered if this application is ever dealt with on the merits. But again there is, it seems to us, plainly an arguable case that in that letter of 20th July 1992 the applicant is complaining not just of past acts or omissions by the Union but of a continuing failure on their part to deal with his position. That Notice of Application of course was before the Industrial Tribunal and we are bound to conclude that taking full account of the principle expressed in the Retarded Children's Aid Society Limited v Day, it does appear to us that the Industrial Tribunal considered the matter purely in relation to specific dated actions rather than to the possibility of a continuing complaint of various failures on the part of the Union. Whether any or all of those failures themselves would come within one of the subsections of Section 64(2) is a matter we do not decide to today because it is not for us to do so; what matters is whether on a fair reading of the reasons of the Tribunal we can conclude that the point about complaints of continuing failure was considered by the Industrial Tribunal and we have come to conclusion that, doing our best to understand their reasons, and giving full weight to the fact that an Industrial Tribunal is not required to spell out every word and syllable of its thought processes, the inference that should be drawn is that the question of continuing failure was not one of the matters to which they addressed their attention.

That being so the principle is, as we understand it, quite clear that we have to allow the appeal and remit the matter for further consideration by the Industrial Tribunal unless we are satisfied that, even if the matter had been considered no Industrial Tribunal properly directed could have come to any other conclusion but that to which this Tribunal came, and we need only say that we are not satisfied in that sense. The facts and history are complex and they need to be considered by the Tribunal which is charged with the responsibility of finding the relevant facts and reaching the appropriate conclusion, and we are not in the position that there is only one possible answer which they could give.

That being so, the appeal will be allowed and the matter remitted to the Industrial Tribunal and in all the circumstances we consider that the most appropriate course, unless Miss Ellenbogen wants to make any submissions to the contrary, because the matter has not been canvassed, should be that it should be a differently constituted Tribunal.

Since we have reached that decision it is not strictly necessary to consider the other and original grounds of appeal, and indeed we do not propose deal with ground 1 or 2, but we think it only right to deal with the allegation of bias in fairness both to the appellant and to the Industrial Tribunal, and given that on this point not only have we the full submissions of the appellant - although no sworn evidence, because as far as we have been able to ascertain he was never required to submit any - but we also, in effect, have the Chairman's comments, because although, again as far as we can see, those comments were not formally called for by this Tribunal, the very point as I have already indicated was dealt with by the Chairman in dealing with the application for review. We want to make it quite clear that we fully accept the account given by the Chairman in her reasons dismissing that application and dealing with the allegation of bias so far as it concerned the consequences of the appellant's failure to attend, and we wholly reject the allegation of bias put in that way. The appellant in effect also puts his allegation of bias in an alternative way by saying that he regards the decision of the Industrial Tribunal as so indefensible that the only possibly explanation is that it was biased. That is a proposition that only has to be stated to be rejected and we reject that way of putting the allegation also.