Nacods v Gluchowski [1995] UKEAT 734_95_0410

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 734_95_0410

Case No Appeal No. EAT/734/95

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Nacods

Gluchowski

Date 4 October 1995

[1]3rd and 4th May 1995 and resulted in a reserved decision. The unanimous decision of the Tribunal was that the complaint of Mr Gluchowski was well founded and the Tribunal declared that he was excluded or expelled from the NACODS in contravention of Section 174 of the Act. It is against that finding that NACODS appeal to this Tribunal. In her submissions on behalf of NACODS, Ms Eady has presented her case under three headings, and it is appropriate for us to deal with them in her order. "Suspension" and "Exclusion" The essence of Ms Eady's first submission is that as a matter of law Mr Gluchowski could not bring himself within Section 174 because, she says, that section deals simply with exclusion or expulsion from a Trade Union and not with suspension. In considering a similar submission, the Tribunal came to the conclusion that in the circumstances of this case "exclusion" embraced suspension as it effected Mr Gluchowski. In Paragraph 20 of the decision the Tribunal stated as follows:

"Section 174 (1) of the Act refers to an individual who is excluded or expelled from a trade union. At first sight exclusion appears to cover an individual who is not allowed to become a member and expulsion to refer to an individual whose membership is terminated. On consideration however the definition of exclusion must be wider. If it were not so, a trade union by imposing a permanent suspension could argue that an individual has neither been excluded or expelled. Exclusion must include exclusion from the benefits of membership and the ability to make use of any of its privileges. Although National denies that the applicant is still a member be does not appear to have been given notice of termination of membership on the 1 November. The Tribunal concludes that he has been excluded. ..."

In addressing this finding Ms Eady seeks to sustain a distinction between exclusion from a Trade Union which is covered by Section 174 and exclusion from some or all of the benefits of membership. In this context it has to be recalled that at the material time Mr Gluchowski was still paying his contributions and, moreover, if he had complied with the terms of the April and June resolutions he would have automatically been restored to all the benefits of membership without further application to become a member. The reasoning of the Industrial Tribunal appears to be based on a fear of what would be the case if suspension was in effect permanent. That concern would of course extend to a series of tactical suspensions. In our judgment, that concern of the Tribunal was misplaced. As we have stated the remedies available in respect of Section 174 are without prejudice to other remedies which a member may have. It seems to us that the kind of situation referred to by the Tribunal would, in very many cases, lead itself to remedy by other routes. We have to consider the strict words of the statute and ask ourselves the question, so far as this submission is concerned, did the events which we have described amount to an "exclusion" from a Trade Union. We have been referred to the recent decision of the House of Lords in Association Newspapers Ltd v Wilson and Associated British Ports v Palmer & Others , conjoined appeals reported in

1995 ICR 406

HL. Whilst we do not think that the case is directly on the point with which we have to deal, we do find it significant that in some of the speeches in the House of Lords, their Lordships draw the distinction between Trade Union membership and the enjoyment of the benefits of Trade Union membership. At 418 Lord Bridge of Harwich dealing with the decision in Discount Tobacco & Confectionary Ltd v Armitage said this of a passage in that case in the judgment of Knox, J,: Page 418 C "... But if the passage cited is held to establish as a general proposition of law that, in the context of section 23(1) (a) and section 58(1)(a) of the Act of 1978, membership of a union is to be equated with using the "essential" services of that union, at best it puts an unnecessary and imprecise gloss on the statutory language, at worst it is liable to distort the meaning of these provisions which protect union membership as such." There is a further reference of a similar kind in the speech of Lord Lloyd of Berwick at pages 424 G to 425 where it is stated:

"... But like Lord Bridge of Harwich, I cannot regard the case as authority for the broad proposition that membership of the union and the making use of the union's services are in some way to be equated. In my view, section 23(1)(a) was intended to protect trade union membership as such, that is to say, the right to associate as members of an independent trade union, just as section 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words "or making use of the essential services of the union" in section 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as the same thing. They do not mean the same thing in section 23(1)(c). So why should they mean the same thing in section 23(1)(a)?"

As we have indicated we do not find that case to be on all fours with the present appeal. However, we do find some assistance in the approach of their Lordships. Having regard to the continued payment of contributions, and to the fact that restoration to full benefit could have occurred without further application for membership, we have come to the conclusion that Ms Eady's submission on this first point is well founded, and we take the view that paragraph 20 in the decision of the Industrial Tribunal is wrong in law. In our judgment, "exclusion" refers to a refusal to admit and not to suspension. We further consider that this narrower interpretation accords more with the history of this statutory provision.

[2]"Expulsion" Section 174 is not limited to exclusion. It refers also to an individual who has been "expelled" from a trade union. At this appeal the primary submission on behalf of Mr Gluchowski is that he was not in fact expelled and NACODS have also taken the view throughout that there was no expulsion. The Industrial Tribunal found that there was expulsion in this case, the relevant findings being in paragraphs 20 and 22. In paragraph 20 it is stated:

"... The Tribunal concludes that he has been excluded. Alternatively if National takes the view that he has ceased to be a member he must have been expelled because certainly he has not resigned or left by agreement."

We should add that if National were taking the view that he had ceased to be a member it was because of some perception and arguably misinterpretation connected with the payment of contributions or lack thereof, rather than for any other reason. Paragraph 22 reads as follows:

"National rightly or wrongly felt that the involvement of Midland in the activities of Keelglen was undermining the authority of National. National had not been kept properly informed and National had grounds upon which to be concerned. A suspension was the subject of a resolution of a National conference but there was no power to extend the suspension beyond 6 months. On the expiration of 6 months the applicant ought to have been allowed to resume his position as full member of National but as a result of a breach by National of its own rules his suspension has been continued or if he is no longer to be regarded as a member of National he must have been expelled."

There is no evidence that positive steps were taken by NACODS to expel Mr Gluchowski. In dealing with the finding of the Industrial Tribunal on question of expulsion, Ms Eady has approached it on the basis that if there was such an expulsion it must have been in the nature of a constructive expulsion akin to constructive dismissal in employment cases. We observe that in Section 174 there is no specific provision about constructive expulsion of a kind that one gets in connection with constructive dismissal in Section 55 of the other Act. We, for our part, have some doubt as to whether constructive expulsion falls within Section 174 in any event. However, Ms Eady declined our invitation to pursue that argument. What she says is that if there is to be finding of expulsion, it must be on the basis that there was a fundamental breach of contract on the part of NACODS which caused a constructive expulsion. This, she rightly points out, could only be so as a matter of Contract Law if that fundamental breach were accepted by Mr Gluchowski as putting an end to the contract. Once again she refers to the continued payment of contributions, and submits that at no stage did Mr Gluchowski accept an alleged repudiatory breach so as to put an end to the contract and nor was there any indication at any stage that he had done so or might do so. Once again, we find ourselves respectfully disagreeing with the legal conclusion of the Industrial Tribunal as we have set it out. It seems to us that there is no evidence in this case of direct expulsion, no resolution of expulsion, no notice or notification of expulsion. If constructive expulsion is capable of falling within Section 174, there is no evidence that steps were taken by Mr Gluchowski of such a kind as would have enabled the alleged repudiatory breach to be converted into a termination of the contract as a constructive expulsion. It follows from the findings that we have made in relation to the first two headings, that in our judgment the decision of the Industrial Tribunal to the effect that Mr Gluchowski was excluded or expelled in contravention of Section 174 cannot stand and that this appeal must be allowed on both those grounds.

[3]"Conduct" Section 174 does not apply to all exclusions and expulsions from Trade Unions. It is specifically provided in subsection 2 that:

"(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if)- ... (d) the exclusion or expulsion is entirely attributable to his conduct."

This provision led to a dispute in the Industrial Tribunal that has been further ventilated before us. The case put forward on behalf of NACODS was that the suspension was entirely attributable to the conduct of Mr Gluchowski. This contention did not find favour in the Industrial Tribunal. Paragraph 23 of their decision is as follows:

"23. It is, therefore, impossible to say that the exclusion or expulsion of the applicant was entirely attributable to his conduct. It is due to the steps taken by National in breach of its own rules."

It is clear to see what the Tribunal had in mind. Because the rules did not provide for suspensions in excess of six months, and because of Mr Gluchowski's complaint was confined to events after the expiration of the first resolution by a period of six months, the Tribunal was taking the view that the matters of which Mr Gluchowski was complaining were entirely attributable to the Unions' breach of its own rules rather than to his conduct. We have found this to be a difficult matter and have come to the conclusion that having regard to our findings under the first two headings of the appeal and the inevitable allowing of the appeal that follows there from, it is not necessary for us to make any finding in connection with this third heading, and we shall not do so. Before we leave this case, there are three general matters on which we feel inclined to make observations. The first is that we were told half way through the heading that Mr Gluchowski is no longer in dispute with NACODS as to his membership, in that he has been enjoying full membership benefits since notification of the Industrial Tribunal decision. This has caused us to wonder from time to time whether there was any great purpose in this appeal, although Ms Eady tells us that quite apart from any possible issue as to compensation, NACODS and indeed other unions are interested in this Tribunal's interpretation of the words "excluded or expelled" in Section 174. The second observation is that as we have noted earlier in this judgment, there will be many cases where events of the kind which concern Mr Gluchowski in this case will lend themselves to appropriate remedy, either at Common Law in the ordinary courts, or pursuant to other parts of this statute. Our decision has simply been concerned with whether the facts of this case as a matter of law come within Section 174. The third and final observation is that although we are allowing this appeal, we do not intend any criticism whatsoever of the Industrial Tribunal which appears to have struggled manfully with a difficult case and without the assistance of any authorities upon complicated statutory provisions. They ought not to feel criticised in any way.