United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: On 1 December 1992 the Appellant, Mr Lane, presented a complaint to an Industrial Tribunal of "effective unjustifiable discipline by my Trade Union against NALGO, now UNISON". Under the details of his complaint section he said:

"My complaint is that I have been effectively expelled from NALGO. ..."

In response, the Union denied that the Appellant had been disciplined and contended that the claim was time-barred.

The limitation point was taken as a preliminary issue before the Industrial Tribunal on 21 July 1993 and by a decision dated 26 July 1993 the complaint was dismissed on the grounds that it was out of time. The Appellant applied unsuccessfully for a review of that decision. He then appealed to the Employment Appeal Tribunal (EAT/865/93). First, there was a preliminary hearing held on 12 April 1994 (Judge Peppitt QC presiding). That hearing was adjourned until 5 October 1994 when it came before a Tribunal presided over by Mummery J.

On that occasion this Tribunal was persuaded to allow the matter through to a full hearing by the submission made on behalf of the Appellant by Mr David Bean of Counsel, whom we assume appeared as amicus curiae, since Mr Lane has conducted this entire litigation by correspondence, that the complaint here was one of deprivation of benefits under Section 64(2)(d) of the Trade Union & Labour Relations (Consolidation) Act 1992 (notwithstanding that the complaint is said to be one of "effective expulsion") and that this was a continuing act for limitation purposes. On that footing the appeal came on for a full hearing before a division of the Employment Appeal Tribunal presided over by Judge Hicks QC on 13 September 1995. For the purposes of the present appeal the Appellant was most anxious that we should read the judgment of Judge Hicks, given on that occasion and we have done so. The appeal was allowed, as appears from the transcript at page 9 B to G.

"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 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 the 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."

With very great respect to our predecessors, we are quite unable to fit that ruling into the scheme of the Act.

Section 64 provides, so far as is material:

"(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.

(2) For this purpose an individual is 'disciplined' by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that -

(a) he should be expelled from the union or a branch or section of the union,

(d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union. ..."

Section 66 provides:

"(1) An individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the union to an industrial tribunal.

(2) The tribunal shall not entertain such a complaint unless it is presented -

(a) before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or

(b) where the tribunal is satisfied -

(i)..that it was not reasonably practicable for the complaint to be presented before the end of that period, or

(ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,

within such further period as the tribunal considers reasonable."

It follows that, unlike for example the limitation provisions to be found in the former Wages Act 1986, which deals with a series of deductions, or continuing acts of discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976, the complaint under Section 64 crystallises when the material determination is made by the Union. This right is equivalent to the right to complain of unfair dismissal, where the cause of action arises upon a single event, the dismissal.

The difficulty facing the Industrial Tribunal sitting at London (North) under the chairmanship of Mr D.B. Williams on 12 August 1996 was in considering the point on which the case was remitted, namely, whether there was a "continuing failure" on the part of the Union which rendered the complaint in time.

The way in which the Tribunal dealt with the matter was to conclude that any rights enjoyed by the Appellant must have ceased when his last union subscription expired at latest on 31 December 1991. Therefore his complaint presented on 1 December 1992 was out of time, having been presented more than three months after 31 December 1991. They refused to extend time under Section 66(2)(b) of the Act and dismissed the complaint on the grounds that it was time-barred.

In so doing it seems to us that the Industrial Tribunal fell into error. Section 64(1) provides that an individual who is or has been a member of a Trade Union has the right not to be unjustifiably disciplined. It is therefore envisaged that the material determination by the Union under Section 64(2) may take place after membership has ceased. It seems to us that the question of limitation cannot be decided until the "determination" date has been identified. This was not done by the Industrial Tribunal.

The question then arises, what is to be done with this case? We return to the Originating Application at paragraph (ii) of the grounds of complaint. The Applicant said this:

"(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 and, as I have said, without the provision of any reason for not doing so. ..."

In their Notice of Appearance the Union deny that the Appellant has been disciplined.

In his Notice of Appeal dated 15 November 1996 the Appellant is at pains to point out that his case is that he has been effectively expelled and effectively unjustifiably disciplined. He explains his use of the word effectively in these terms:

"(2) ... There is clearly a world of difference between complaining of being expelled and unjustifiably disciplined and complaining of being effectively expelled and effectively unjustifiably disciplined. If I had complained of being expelled I would agree with the Respondent's contention (see paragraph 8 of the I.T.'s Extended Reasons), a contention with which the I.T. appear to agree, that I should have been able to give a date for my expulsion. As things are the Respondent's contention is quite illogical. However, my contention that my expulsion was effective expulsion, a continuing act which continued up to the date of my Originating Application and beyond, rather than expulsion, a 'one off' act with an actual date upon which it took place, is entirely dependent upon the fact that I complained of effective expulsion rather than expulsion. I chose my words very carefully. ..."

On our construction of the Act, contrary to that of our predecessors, there is no scope for complaining of a continuing act. Either the Union has made a determination for the purposes of Section 64(2) or it has not. On the material before the Industrial Tribunal there was no evidence that such a determination had been made.

Our powers extend to dismissing the appeal if, despite the Industrial Tribunal's self-misdirection, the result is plainly and unarguably right (Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812). In this connection we note two points. The first is that the Industrial Tribunal, in paragraph 2 of their Extended Reasons, state their task to be, as directed by this Appeal Tribunal under Judge Hicks, to decide the limitation point, and if it is resolved in favour of the Appellant, to proceed to consider the case on its merits.

The second point is that the Appellant himself in his Notice of Appeal of 15 November 1996, asks us to consider the case on its merits and not remit the matter back to the Industrial Tribunal.

Since the Appellant's case is and always has been, advanced on paper, we shall accede to his request. On the material which would be before an Industrial Tribunal on remission by us there was no relevant determination by the Union under Section 64(2). Accordingly the claim must inevitably fail on its merits. In these circumstances no purpose would be served in remitting the matter to the Industrial Tribunal (McLaren v The National Coal Board [1988] ICR 370, 378). We shall therefore uphold the Industrial Tribunal's decision to dismiss the complaint, not on the ground that it is time-barred, but on the basis that it discloses no cause of action.

The appeal is dismissed.