United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T LINDEN (of Counsel) Messrs Irwin Mitchell West Brow 8 Arkwright Road Hampstead London NW3 6AB


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is a point of law in a prospective appeal against a majority decision of an Industrial Tribunal held at London (North) on a large number of days in 1997.

Mr Linden of Counsel, who appeared on behalf of the respondents to the complaints which were of race discrimination, has argued that there are three points suitable for a full hearing. We simply identify them in short-form, although the first point is contained in paragraph 6.1 to 6.4 inclusive of the Notice of Appeal.

It may be summarised in this way. In what circumstances is a union to be held liable for the consequences of what was done at branch level? Full details of the issue are contained, as I say, in those three paragraphs.

The second issue relates to a finding by the Industrial Tribunal that a resolution which was passed at the NATFHE branch meeting of 14th March 1996 was a clear act of victimisation. The decision of the Industrial Tribunal at paragraph 22 A deals with the resolution, and the decision of the Industrial Tribunal was set out in those paragraphs. It was their view that the resolution itself was a clear act of victimisation and, it seems to us, to be arguable that the Industrial Tribunal have misdirected themselves in relation to that document. Essentially what is at issue is the proper interpretation of the resolution which was passed having regard to the events which immediately preceded it.

The third issue is slightly more complex. It relates to the National Union's subcommittee which was responsible for deciding when and it what circumstances help or assistance should be given to members. The Industrial Tribunal's conclusion on this was that on 30th July 1995 the relevant subcommittee took a decision which, as the majority noted, amounted to the creation of a policy or procedure as outlined and that it was an unlawful policy because it disadvantaged the applicant.

It is Mr Linden's contention that this part of the decision is unsustainable; that there was no evidence to support the finding that the decision taken by the subcommittee amounted to the creation of a policy or procedure or represented a continuing act of race discrimination. He says that the only evidence as to the Union's policy came from witnesses who described it to the Industrial Tribunal, and that even if the decision of the subcommittee was strange and possibly in conflict with the stated policy, there was no material on which the Industrial Tribunal majority could have concluded that it created a policy or procedure or amounted to such. The relevance of that issue is that the matter complained of related to an event on 30th July 1995. The IT1 was presented more than three months after that date; if there had been no continuing policy, practice or procedure as the tribunal held, then there would have been a time limit point and the tribunal would have had to apply its mind as to whether to extend time to enable the applicant to make a complaint about it.

Those are the three issues.

In relation to the third, it seems to us to be sensible at this stage to ask the learned Chairman to identify from his Notes of Evidence and after consultation with his lay colleagues, the facts on which the majority reached their conclusion that the decision on 30th July 1995 amounted to the creation of a policy or procedure as outlined above. I am referring to paragraph 23 A(9) of the decision at page 69 of the typescript of the decision. It would be of assistance to us on the hearing of this appeal to have a response to that question and we are sure that the Chairman will assist us in that respect.

The reason why we are asking that question is to avoid having to order the production of notes. Mr Linden says that a limited quantity of notes only would be required. We suspect that might not do full justice to the parties' cases, and it would be very undesirable, as it seems to us, if all the notes of all the evidence were to be required. That is why we are inviting the Chairman to assist us in this somewhat unusual way.

The full hearing is to be listed as Category A, for 1½ days, no further directions at this time, so far as we are aware. If there are matters of dispute between the parties which need to be resolved before the hearing, I will see them in my room before Court sits on any day that is convenient to them.