Title: Appeal No.
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Appeal No.	 EAT/496/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
HIS HONOUR JUDGE J HULL QC
MR L D COWAN
MR P R A JACQUES CBE

MR J M BROWN	APPELLANT

TRANSPORT & GENERAL WORKERS UNION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant

MR N BOOTH
(of Counsel)
ELAAS

	JUDGE J HULL QC:	This is an appeal to us by Mr James Murphy Brown, formerly of the Transport & General Workers Union, from a decision of the Industrial Tribunal sitting at Manchester under the Chairmanship of Miss Woolley with two industrial members.   That Tribunal held in their decision, which was published on 11 February 1998, that Mr Brown had not been unjustifiably disciplined by the trade union -the trade union had in fact expelled him.

	He made his complaint under section 65 of the Trade Union & Labour Relations (Consolidation Act) 1992 or rather, I should say, under S.64 as explained by S.65.   S.65 provides:

“(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is-
(a)  conduct to which this section applies, or
(b)  something which is believed by the union to amount to such conduct;”  and then it refers to subsection (6)
“(2)  This section applies to conduct which consists in ...
(c) asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any enactment (whenever passed) or any rule of law;”

	Mr Brown had made suggestions of dishonest, fraudulent behaviour relating to the union’s property against high officials and members of the union in influential positions.   There is a fairly long history to this matter and I will mention what appear to be landmarks in it so as to explain the submissions to us and our decision on them.   

	According to the Industrial Tribunal, on 13 January 1994 the general secretary suspended Mr Brown and, in February 1994, he was dismissed from the service of the union.   He had a car which was union property and which he was allowed to use.   He took the car to Scotland and there was, apparently, some trouble in getting it back which involved proceedings in the Scottish Court.   He made a complaint to an Industrial Tribunal about his dismissal;  that was dismissed and he was ordered to pay £500 costs to the union on 22 August 1995.   (That of course must have been on the basis that his complaint was in some way unreasonable or unreasonably prosecuted, the Industrial Tribunal would not generally award costs.)   Shortly before that there was another adverse result.   The Scottish Court - whose part I have mentioned in securing the return of the car - on 9 October 1994, had ordered him to pay £2,065 costs.

	It is the £500 costs which mainly concerns us in this story.  £20 of that was paid because he had been ordered by the Industrial Tribunal in advance to pay £20, under the Rules, and that was paid out but the £480 remained and interest continued to mount on that.   

	Mr Brown appealed to our Tribunal against the decision of the Industrial Tribunal concerning costs.   That appeal was dismissed.   Then, on 20 March 1997, Mr Brown sent a complaint of fraud to the general secretary.   The alleged fraud, which I have mentioned, was undoubtedly a serious matter.   We have no details of the history of the matter but the allegations are, as we understand, firmly denied.

	On 12 June 1997 the general secretary gave the Appellant notice of a complaint against him to the finance and general purposes committee.   The complaint against him was that he had been guilty of behaviour which justified his disciplining in that he had not paid the £480 plus interest which he should have paid.   

	The matter was considered by the finance and general purposes committee and on 17 July 1997 they resolved that the Appellant should be expelled from the union.   He did not attend before the finance and general purposes committee.

	On 28 August 1997 he issued his IT1 and he said that he had been unjustifiably disciplined and referred to the Statutory Provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, to which I have referred.   Whilst the Application to the Industrial Tribunal was pending the appeal committee of the trade union rejected his appeal.   Again, he did not attend before them.   

	These matters came before the general executive committee of the union who, we understand, are responsible for setting up and delegating powers to the finance and general purposes committee, the minutes were approved, we are told, by the general executive committee. 

	The Industrial Tribunal sat to hear the matter of this complaint.  Mr Brown appeared before them.   He was in person, the Transport & General Workers Union were represented by Counsel and the Industrial Tribunal gave an exceptionally long and careful decision with regard to this matter.   They set out the history much more fully than I have.   They say, in paragraph 11 of their decision:

“From the facts agreed, it is clear to us that the respondents[the trade union] disciplined the applicant within the meaning of section 64(2)(a) of the 1992 Act and they admit they did.   We find they decided to expel him from the Union.   The issue for us is whether the applicant has shown that the reason or one of the reasons for that discipline was a reason within section 65(2)(c) of the 1992 Act.”

	That direction to themselves is not complained of.   They then set out a great deal more of the history of the matter, the allegations of fraud and impropriety which had been made concerning the union.   They deal with one matter which certainly they were right to deal with:   it had been alleged, when the complaint was made which led to the disciplining of Mr Brown, that “it was perfectly plain that he could have paid this sum for costs to the union because he had stood as a candidate for Parliament and had been in funds for that purpose and,” it was suggested,  “if you can afford to stand for Parliament and make the necessary deposits and so forth, then it is clear that you can afford to pay this debt which had been owing to the union now for some time.”   

	That was a bad point.   The Industrial Tribunal found that the committees who heard this matter realised that it was a bad point.   The fact was, as Mr Brown told them and as was accepted by them, those who were prepared to put up the money for him to stand for Parliament had put up the money for that purpose and there was no question of their being asked to put him in funds for the purpose of paying a debt to the union, nor did this indicate that he had any funds of his own.   He also wished to make the point that he had made what might or might not be a derisory offer of paying the £480 at 50p a week.   So they considered that matter.

	They say, relating to the finance and general purposes committee and their meeting, when they decided that Mr Brown should be expelled:

“26.   The Committee discussed how far they should consider the applicant’s allegations of fraud in respect of the Gibraltar accounts.   We accept they concluded that they should confine themselves to the question of whether he had been shown to have acted contrary to the interests of the Union or inconsistently with his duties as a member by a wilful refusal to pay the sum due.” They are referring there to the £480 and interest. “They took into account that the rules of the Union provide that membership lapses, if a member becomes more than 13 weeks in arrears with his subscriptions.   The sum involved in the costs order from the Industrial Tribunal and the period of time over which the sum had been due was much greater.   They decided that the applicant had been guilty of conduct contrary to the interests of the Union or inconsistent with his duties as a member because his failure to pay the sum ordered appeared to them to be deliberate.   We accept they decided as a result to expel him from the respondent Union.   We find the only reason for his expulsion was that he had failed to pay the order for costs.   We accept that the allegations made by the applicant [his allegations of fraud] formed no part of the reason to expel.   We accept that the decision was taken by the Finance and General Purposes Committee and that neither the General Secretary nor the Financial Secretary were members of that committee.”

	Then they went on to the appeal committee.  They say that:

“28.   The Appeal Committee is a committee constituted under Rule 4 paragraph 10 of the respondent’s rules for the special purpose of hearing appeals, such as the applicant’s, from the decision of the General Executive Council on certain matters.   We have heard the evidence of Mr Pickering who was a member of and Chairman of that Committee.   We accepted his evidence.   The members of that Committee are not members of the General Executive Council.   The object is that the Appeal Committee is independent of the General Executive Council.   We accept Mr Pickering’s evidence that he and the other members of the Committee took very seriously their task to give the applicant a fair re-hearing of his case.”

	They then record that, as I have said, Mr Brown did not attend the hearing.   They say the appeal committee:

“30.  ...discussed what they should do about the allegations of fraud.   They decided that it would not be right for them to launch an investigation into the applicant’s allegations themselves.   They decided that whether or not the allegations were well-founded, they should consider the allegations about the applicant’s failure to pay the sum due because the applicant’s allegations could not be directly relevant to a failure to pay.”
 31.   We accept they concluded that the applicant had made no real attempt to pay the sum due.   We accept Mr Pickering’s evidence that the Appeal Committee was told by Mr Collins” he was an administrative officer “during the course of their discussions that the applicant had made an offer to pay the sum due at the rate of 50 pence a week at the end of the Tribunal hearing on 28 July 1995 but that had been rejected.   The Appeal Committee accepted that the applicant’s deposit as a Parliamentary candidate had been raised from people who donated for that purpose.  They rejected the point made about that in the Statement of Complaint.   We find, nevertheless, they felt that the applicant was wilfully failing to pay because he had made no effort to pay anything of his own free will....
The applicant had not put forward anything about his financial circumstances or suggested that he was not able to pay because he could not afford to do so.   We find that the Appeal Committee formed the view from the applicant’s letters that he was just not willing to pay the sum ordered...”

	They go on to say:

“We find his state of mind at all times has in fact been that the would not need to make any arrangements to pay the money until the end of the County Court proceedings.”  (He was suing the union in County Court proceedings and wished to set off the £480 and interest)  “He did not, however, we find put forward any such suggestion clearly to the Appeal Committee.   He has suggested to us that he thought that the debt was not due because of the claim he made in the County Court.   We accept that he could have put forward that reason to the Finance and General Purposes Committee and to the Appeal Committee and he could have submitted to them that they should conclude that he was not acting against the interests of the Union in those circumstances in failing to pay.   If he had chosen to do that the committees would then have had to consider that point but he did not choose to do so.

32.   In our view it is not for us to decide whether he should have been expelled.   We find the reason why the Appeal Committee dismissed the appeal was because they found that the applicant had wilfully failed to pay the debt in circumstances where they inferred that the failure was a deliberate refusal to pay the debt because no attempt had been made or reason put forward for failure.   We accept Mr Pickering’s evidence that the fact that the applicant had made allegations about corruption and fraud was no part of the reason to dismiss the appeal.”

	So they had found in terms that the decisions of both the finance and general purposes committee and of the appeal committee were not in any way influenced by the complaint which Mr Brown himself had made against the good faith of senior officials in the union.   It was not the reason or one of the reasons for disciplining him.   Mr Brown appealed from that.   

	He had taken up a good deal of time at the Tribunal, evidently, by making points of a technical sort.   He had told the Tribunal that they should not hear counsel and solicitors for the trade union because, he said:  “the presence of counsel was not authorised by resolution of the general executive council of the union”.   That was dealt with by the Tribunal who found that, indeed, authority had been properly delegated to the general secretary of the union and that counsel was therefore, with the solicitors, duly instructed.

	In his appeal to us, Mr Brown makes a number of points of similar technicality.   He makes a number of complaints concerning the union with which, it seems to us, neither we nor the Industrial Tribunal were concerned, but he sets out some history there.   He makes complaints about the Industrial Tribunal, saying that “it erred in not finding that the general secretary did not have authority to take punitive measures against members of the union.   The Tribunal therefore erred in not finding that the union were defending the case outside the rules and ultra vires.   They erred in finding that the reason for the Appellant’s expulsion by the Transport and General Workers Union was not directly linked to assertions of fraudulent activities and they erred in not finding that he had been denied his rights as a TGWU member since 10 November 1993.”

	Well, today Mr Booth, to whom we are very much obliged, has appeared  on behalf of Mr Brown.   He has not pursued any of those grounds and he said to us frankly that if we were in his favour on the point which he did wish to make to us, it would be necessary to amend the Notice of Appeal and, in due course to put in a fresh skeleton argument.    The point which Mr Booth makes to us is this:   that the Industrial Tribunal confined their attention to the deliberations and decision of the finance and general purposes committee and of the appeal committee and that, in fact, they should have looked wider.   In particular a most important matter for them was the motive for the complaints which were made in the first place.

	He says that Mr Andrew Smith, who was an important official, a chairman of the finance and general purposes committee, gave evidence that Mr Bill Morris, the general secretary of the union, had whispered in his (Mr Smith’s) ear that there was this long-standing debt (referring to the £480 and interest) to be recovered.  “‘This member,’” (he quoted) “‘owes us £500 and we need to take action against him.’   So,” says Mr Booth, “that was what the Tribunal should have inquired into.   They should have looked to see the malice, so to speak, which lay behind this complaint.   The motive for this complaint against Mr Brown was that he was an absolute thorn in the side of the union.   He had made these complaints and persisted in them, had tried to drum up support for them - not unsuccessfully.   Clearly, if these complaints could be established, of fraudulent misapplication of property and other corrupt behaviour in the union, it would lead to very grave consequences for a number of officers and in particular the general secretary:  that was why the complaints were presented.”

	So we ask ourselves whether that indeed was the proper subject-matter of the Industrial Tribunal’s decision and whether they can properly be criticised for not looking into those matters.   Clearly, one would say, in parenthesis, that it would be a wide inquiry;  because, although they would have this indication with regard to the general secretary they would have to look at all the steps that were taken and, one supposes, to inquire into the motives of all those who had any part in advancing these charges, even if they were merely clerks or minor officials in the union, because one knows perfectly well that in any large organisation it is likely that any active member may well have enemies who will only be too pleased to see some disadvantage come to him - perhaps only a political disadvantage, and so, if Mr Booth is right, the Industrial Tribunal would have to look at the motives of all concerned to see what the true reasons for the inception of the proceedings were, and their furtherance until they came to the committee.   

	Instead of which the Tribunal has looked scrupulously at the workings of the finance and general purposes committee, found that the committee decided not to pay any attention to the complaints which Mr Brown had made and reached their decision purely on the basis of the conduct shown by the failure to pay the £480 and interest.   The Tribunal then went on, with equal patience and meticulousness, to consider the appeal committee and consider whether the appeal committee had paid any attention to that.   They found that that was not so;  that the appeal committee had deliberately decided to pay no attention to the complaints made by Mr Brown and their possible truth or otherwise and how they were being dealt with but had concentrated simply on the failure to repay this fairly substantial debt to the union.   

	They also looked at the - as it turned out to be - bad point which was made in the complaint about Mr Brown’s ability to pay.   They decided independently of that that he could have paid and that he was deliberately refusing to pay.   They found, therefore, that those were the reasons.

	To see whether the Tribunal were right or whether Mr Booth is right we have to look at the section:

“(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is-
(a)  conduct to which this section applies, “

	For these purposes his conduct in prosecuting a complaint true or false, justified or unjustified, of corrupt behaviour by the trade union.

	One notices that to support Mr Booth’s argument one has to introduce an element of paraphrase.   One has to look not just at the reason for disciplining Mr Brown but at the motives and not only the motives of the body which disciplines him, in this case the finance and general purposes committee and the appeal committee, but all those concerned with moving the complaint forward until it is considered by those committees.

	Can it be said that a possible malicious motive or improper motive by one of the officers of the union or perhaps a person in a clerical position, is a reason or one of the reasons for disciplining him?   Clearly it might be said to be a reason for making the complaint in the first place, or a motive for making a complaint in the first place.   An ill-disposed person may have all sorts of motives and reasons.   Is it then to be said automatically if that is so, no matter how objective and fair-minded the committees are, no matter how patiently and properly they set about their task, no matter how well justified their decision appears to be, that nonetheless, it can properly be said that the reason or one of the reasons for disciplining him is the motive of this person who does not take any part in that decision, even if the committees have deliberately put those matters which are alleged to be the motive out of their minds and refused to pay attention to them?    We think that that would be to make the section entirely unworkable and, in our view, it is unarguable that that is what the section means.   It is speaking not of the motives of those concerned with bringing a complaint which may very, very often be mixed and sometimes, unfortunately, malicious.   Is the Industrial Tribunal to enquire into those?   It is not.   For the short and simple reason that those are not the reasons for disciplining him.

	The reasons for disciplining him are those reasons which move the committee concerned, and the appeal committee, to discipline him.   They are the people doing the disciplining and what is the reason?   They give their reasons.   The Industrial Tribunal finds that those are proper reasons.   It seems to us that any other view of what has happened in this case would, indeed, mean that no trade union could possibly proceed in a rational and orderly way the moment it could be said that somebody had, or might have, some improper motive for putting forward, or some oblique motive for putting forward, a complaint.   That would, in effect, disqualify the union by any of its committees or any of its organs from disciplining the person concerned no matter that they proceeded in good faith and no moatter what their actual reasons for disciplining him were, because it could always be said that somebody in the background had a malicious, improper or oblique motive.   We think that is not so.

	We are very grateful to Mr Booth for putting forward the contention which we think to be an important and interesting one.   But after thinking about it we have come to the conclusion that Parliament has chosen its language carefully here and if it had meant something different it would have said so.   When it says the “reason or reasons for disciplining him” that means the person or body who decides to discipline and the reasons which they base themselves on:  not the reasons of anybody else in the union.   We think therefore that this Industrial Tribunal did not depart from its proper task, did not fail to embark on an enquiry it should have embarked on and, since no further arguable reasons are advanced, we have to say that this appeal must now fail and must be dismissed at this stage rather than going forward to a full hearing.   Those are the reasons of us all.

© Copyright 1998

EAT/496/98

EAT/496/98
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