Nazaran v Nalgo [1991] UKEAT 606_89_2911

EAT
Nazaran v Nalgo
[1991] UKEAT 606_89_2911 · 1991-11-29
MR JUSTICE KNOX : We have before us an Appeal by Ms Nazaran from the second of two decisions by the Industrial Tribunal sitting at Brighton.On the first occasion the Industrial Tribunal in a full hearing of the Chairman and two members on 13 September 1989 decided on a preliminary point that the application made by Ms Nazaran under the Employment Act 1988 was in time and could proceed to a full hearing. That is not the decision from which there is presently an Appeal before us.The Decision which is the subject matter of Appeal is a decision of the Chairman sitting alone on 1 November 1989 when he struck out Ms Nazaran's application under Rule 12(2)(e) of the Industrial Tribunals Rules of Procedure as having no reasonable prospect of success and it is from that decision that the Appeal today is brought.A preliminary matter is that a letter was received by this Tribunal from Ms Nazaran two days ago which reads:
"Due to ill health I could not prepare my papers on time. Therefore I would like to ask the EAT to consider an adjournment for my hearing on 29/11/91. If this is not possible then as I am unable to attend the hearing on 29/11/91 please do go ahead with the hearing in my absence. Thankyou."
We were told by Counsel for the Respondent which is the union NALGO, that there had been two contacts between NALGO's Solicitor and Ms Nazaran during this last week on at least one of which Ms Nazaran appears to have been at work and to have agreed to the hearing going forward in her absence. There is certainly no medical evidence of any sort before us to justify an adjournment and in the circumstances we decided that it would not be right for us to grant an adjournment and that the matter should proceed.The claim, as originally made by Ms Nazaran, was principally a claim which was based on an allegation that Ms Nazaran had been unjustifiably disciplined by NALGO since 28 February 1989. The factual background is set out in the first of the two Industrial Tribunal's Decisions mentioned above in a clear and succinct way. Ms Nazaran had, since the end of 1987 been pursuing a claim of race and sex discrimination against the Dental Estimates Board in the Brighton Industrial Tribunal and she was assisted in that process by her union NALGO and in particular by a Miss Lawrence who was the District Officer of NALGO. But during 1988, as sometimes happen, the union officer Miss Lawrence felt doubts as to the validity of the member Ms Nazaran's case and those doubts were expressed to Ms Nazaran.Ultimately, on 27 January 1989 Miss Lawrence concluded that she could no longer represent her at what was then the forthcoming Tribunal hearing and she gave the appropriate notice that was going to happen both to Ms Nazaran and to the Tribunal itself.Ms Nazaran was not happy about this. She took it up with her branch secretary. The local branch considered it and the Executive Committee decided on 28 February 1989, not to assist the applicant in her claim against the Dental Estimates Board and Ms Nazaran was told about this. In fact when she, Ms Nazaran later appeared before the Industrial Tribunal she did succeed in obtaining a declaration and recommendation regarding sex discrimination but not race discrimination and she was not awarded any compensation.What is in issue in these proceedings is the claim which is now put forward that Ms Nazaran has been unjustifiably disciplined, contrary to the requirements of the Employment Act 1988. The first decision of the Industrial Tribunal was purely on the question of whether there was a time barrier to her making her application and that was decided in her favour and the details of that are not now material.The way in which the case was put in her Originating Application was that since 28 February 1989 she had been unjustifiably disciplined by NALGO and that they had made determinations against her and that she had been deprived of benefits, services and facilities and been subjected to detriment for which they had acted in breach of the Employment Act 1988. The Originating Application was elaborated in a letter of 30 May 1989 to which reference was made by way of anticipation in the original IT(1) and that sets out the history as Ms Nazaran saw it. It states the original complaint that she had and that she got in touch with Miss Julie Lawrence and continues as follows:
"To cut the story short after many attempt to resolve the greavence (sic) internally, on January 1989 just before the last stage of Internal hearing when I rang her to find out about how the case is progressing, she informed me that she is going to inform the I.T. that she is not prepared to represent me at the I.T. Since then I attempted myself and the Nalgo Branch to find out the explanation to this unusual act, though since begining of my greavance (sic) for many times I had the support of the Union Branch. But she even rang the Branch Secretary and advised him to withdraw their support which they did.
As a full member of Union I was and still am entitled to full benefits, services and facilities of the Union. Therefore, this action taken by full-time official and the Union Branch is an act of discrimination itself, as stated in the Discrimination on the grounds of sex and marriage and the promotion of equality of opportunity in employment section 12(3):-It is unlawful for such an organisation (union) to discriminate against a member in the way if affords access to any benefits, facilities or services or by refusing or deliberately omitting to afford access to them, or subjecting to any other unfavourable treatment."I read that in full because in the events that have happened it is important to try and ascertain what Ms Nazaran's complaint really is and it will be seen from that elaboration of her Originating Application that there is no mention at any stage of her, Ms Nazaran, having made any assertions that the union had been acting in any way improperly before Miss Lawrence decided that her case was one which the union should not any longer support.The case one discerns from Ms Nazaran's letter is based on two propositions:(1) That there was racial or possibly sexual discrimination, and(2) That there was an improper (and as she would see it) unlawful withholding of the sort of support that a member of a union is entitled on her view of the matter, to receive from the union in prosecuting the member's case. It is we think fairly evident that there cannot be a wholly unqualified right in all members of all unions to insist on the union prosecuting to the last possible ditch every case that the member chooses to bring forward.The legislation with which this application is now concerned because the race discrimination aspect was dropped, is the Employment Act 1988. Section 3(1) provides that:
"An individual who is or has at any time been a member of a trade union shall have the right not to be unjustifiably disciplined by that union."
Subsection (2):
"For the purposes of this section and sections 4 and 5 below an individual who is disciplined by a trade union is unjustifiably disciplined if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is - (a)conduct falling within subsection (3) below; or (b)something which is believed by the union to amount to any such conduct."
Pausing there for a moment, what one has to have is in the first place conduct by the individual which constitutes a reason for the disciplinary process which is sanctioned by subsection (1). Subsection (3) enumerates a variety of different types of conduct by an individual which brings into operation the sanctions against unjustifiable discipline but there has, of course, to be some such conduct as is enumerated in subsection (3).

(c) which reads as follows:

"(3)Conduct by an individual falls within this subsection if - (c)it consists in the making (whether by the bringing of proceedings or otherwise) of any assertion that the union, any official or representative of the union or any trustee of any of the union's property has contravened, or is proposing to contravene, any 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 or rule of law".Subsection (5) of section 3 contains a statement of what amounts to discipline for the purposes of the section. It includes the following:
"For the purposes of this section and sections 4 and 5 below an individual is disciplined by a trade union if a determination is made, or purportedly made, under the rules of the union or is made by an official of the union or by a number of persons including such an official"
and then there is a list of events starting with:
"(a)that that individual should be expelled from the union or from any branch or section of the union (b) ... (c) ... (d)that that individual should be deprived (whether indefinitely or for a specified period and whether in all circumstances or only in particular circumstances) of, or of access to, any of the benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or of any branch or section of the union; (e) ... (f)that that individual should be subjected to any other detriment."
Not surprisingly, the Industrial Tribunal wished in the light of the way in which Ms Nazaran's case was apparently put to ascertain from her what conduct she was relying upon that fell within Section 3 subsection (3) of the 1988 Act and to that end two letters were written to her. The first dated 21 September 1989 from the Office of Industrial Tribunals said inter alia:
"..would you please accept this letter as notice to show cause why your application should not be struck out as being frivolous or vexatious under Rule 12(2)(b) since it has no reasonable prospect of success."
That reference to Rule 12(2)(b) is a clerical error for Rule 12(2)(e) which does indeed deal with cases which are frivolous or vexatious. The letter continues:
"You should write with your reasons as to why the matter should not be struck out by 6th October 1989.
By way of explanation, it would appear that for you to succeed in your claim that you have been "unjustifiably disciplined" under S,3 of the Employment Act 1988, you must show that the reason for the discipline fell within subsection (3) of Section 3."and a copy of this section was enclosed.There was an answer written by Ms Nazaran which contained complaints against the union's activities but did not answer the particular question that had been asked of her namely "What conduct of hers under Section 3 was she relying upon?". So a second letter was written to her dated 16 October 1989 which contained this amongst other things:"While he [the Chairman] understands that your allegations of your Union's failure to provide services (ie representation at the Tribunal) does fall within Section 3(5)(d) of the Employment Act 1988, he cannot at the moment see how the reason for your alleged "unjustifiable discipline" falls within Section 3(3) which is [should read "it"] must do if it is to succeed, in accordance with Section 3(2).would you therefore specify within the next 7 days which of the sub paragraphs (a) to (g) of Section 3(3) you consider constitutes the reason for the alleged "unjustifiable discipline". "and that letter produced no answer of any significance and it was in the light of that that the Learned Chairman in the Decision which is now under Appeal, concluded that Ms Nazaran had failed to adduce any alleged reason why she had been subjected to what she considered to be unjustifiable discipline and that she had certainly not made any allegation of conduct which fell within sub paragraphs (a) to (g) of subsection (3) and he therefore came to the conclusion that the action was bound to fail and he struck it out under Rule 12(2)(e) which is the right paragraph, on the grounds that the action was frivolous.It seems to us that that action by the Industrial Tribunal was beyond any sort of criticism because repeated opportunities had been given to Ms Nazaran to specify how it was that she came within the purview of the Act and she had not produced any satisfactory answer at all.In the Notice of Appeal against that Decision of the Chairman there is the following to be found. First of all in the paragraph of the Notice of Appeal in which an Appellant is asked to specify the decision from which the Appeal is brought and the question of law on which the Appeal is brought, Ms Nazaran included the following sentence:
"It is submitted that the conduct of the Appellant fell within S 3 (3) (c) EA 1988 in that the Appellant inter alia made assertions that the Union and/or representatives of the Union contravened rules of the Union and thereafter deprived the Appellant of benefits and services in accordance with S. 5 (d) of the said Act."
The reference to Section 5 (d) of the Act is fairly clearly a reference to Section 3 subsection (5)(d) of the Act and nothing turns on that.This is the nearest that Ms Nazaran has ever come to making a case out as a matter of assertion rather than proof for the proposition that she had indulged in conduct which was the reason for what she claimed was the union's unjustifiable discipline of her by withholding its support of her application before the Industrial Tribunal. It is wholly unparticularised. There is no indication of either when or to whom the assertions by Ms Nazaran were made upon which reliance is placed and it is something which is not reflected either in the grounds of Appeal that Ms Nazaran set out in para 5 of her Notice of Appeal or in the original IT(1) which was her statement of her case, including in that of course the letter which she wrote by way of elaboration of what she had said in the original forms.In the Notice of Appeal her grounds of Appeal are stated as follows:
"That by virtue of the Appellants conduct she was deprived of benefits and services and in accordance with the Employment Act 1988 an individual who is a member of a Trade Union has the right not to be unjustifably (sic) disciplined and that by virtue of the Respodent's (sic) acts or omissions such unjustifable (sic) discipline has taken place and it is submitted that by virtue of matters indicated aforesaid the respondents are in breach of Section 3 (1) of the said Act."
Taking the most generous view that is possible, partly because Ms Nazaran is not represented before us and partly because she has now certainly no legal representation, we are still unable to detect a properly organised case bringing Ms Nazaran's claims within the purview of the 1988 Act. It seems to us clear on a study of all the relevant documentation that she has provided, that her complaint is that the union ceased to support her for reasons which originally she thought were tainted with racial and sexual discrimination and which she has throughout claimed were unjustifiable.That of course is not sufficient for the purposes of the 1988 Act. There has to be the preliminary conduct by an Applicant in the various categories that I have set out in Section 3 subsection (3) and we are wholly unpersuaded that the very vague allegation which is now for the first time made in the Notice of Appeal in a wholly unparticularised form, constitutes a sufficient reason for us to interfere with what was plainly a correct decision by the Learned Chairman of the Industrial Tribunal that this action should be struck out. We therefore dismiss this Appeal.The Appeal before us having been dismissed an application has been made by the Respondent NALGO for an order for costs under Rule 27(1) of this Tribunal's Rules of Procedure. The relevant rule reads as follows:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
The rule obviously falls into two parts. In the first part there is a sanction provided for proceedings which are unnecessary, improper or vexatious. The second part provides a sanction for unreasonable delay and there is no question of that in this case, or other unreasonable conduct in bringing or conducting the proceedings.In the first case it is the proceedings themselves which are intrinsically unnecessary, improper or vexatious that may bring a sanction in costs. In the second case, disregarding delay, its the behaviour of the litigant in the course of bringing or conducting the proceedings which in themselves may be perfectly respectable and unexceptional proceedings.We have been referred to three authorities in connection with behaviour in the conduct of proceedings before this Tribunal and in particular with a failure to appear before the Tribunal. In particular in CROYDON v GREENHAM (PLANT HIRE) LTD [1978] ICR 415, Mr Justice Bristow giving the decision of this Tribunal referred to the facts of that case which were that an Appellant, in fact a crane driver on the North Sea oil rig appealed against a decision that there was no jurisdiction in the Industrial Tribunal. That was an issue that turned on a question of fact on which the appeal was entirely unsuccessful but in that case as the Learned Judge pointed out, there was no application for an adjournment. What the Appellant did was to write in and say he was not turning up and that he was perfectly prepared to let the Employment Appeal Tribunal pass upon the matter in his absence and had no doubt that it would do its best for him. And that, when it was not acceptable not altogether surprisingly to the Registry, led him to submit his reasons in writing for the appeal as he saw it.In that context there being no application for an adjournment and there just being a deliberate non-attendance, the view was taken by this Tribunal that that constituted unreasonable conduct and a sanction in costs was imposed. We are not satisfied that either that produces any general rule that failure to turn up is liable to be sanctioned in costs or that this is in the present case, on all fours because in this case the letter which Ms Nazaran wrote and which I read at the outset of the main Judgment, did in fact ask for an adjournment. It was written two days before the Hearing and to some extent, albeit not to a very great one, there was a reliance on ill health. Miss Morgan pointed out that the reliance on ill health was relied on to justify the non-preparation of the papers on time rather than to justify the non-appearance. But we are not satisfied that Ms Nazaran's failure to attend before us today amounted to what has been described in some of the other authorities to which we have been referred to as cavalier treatment on her part and we would not if that was all there was to it, be prepared to impose any sanction in costs on that aspect of the matter. That is the second half of the rule.So far as the first half of the rule is concerned the matter does look different to us because it is, we think, both apparent now and has always been apparent that this was a proceeding which was bound to fail in the way in which it was put forward. There were repeated opportunities given to Ms Nazaran to say how it was that she brought herself within the purview of the Employment Act 1988 and there was a total failure to do so before the Industrial Tribunal and subject to what was said in the Notice of Appeal upon which we have passed our judgment in the earlier Judgment, no better effort in this Tribunal. We therefore do consider that this was a case where the proceedings were unnecessary and improper in that they never stood any reasonable chance of success and it is, as we see it, a proper function of this rule that allows us in appropriate circumstances to oppose a sanction to impose a penalty which we fix in this case at a sum of £50 which Ms Nazaran will be ordered to pay to NALGO of their costs in connection with these proceedings. That is intended to be a token rather than any sort of realistic indemnity.