Cude v Usdaw (Union Of Shop Distributive & Allied Workers) [1997] UKEAT 575_96_2204

EAT
Cude v Usdaw (Union Of Shop Distributive & Allied Workers)
[1997] UKEAT 575_96_2204 · 1997-04-22

JUDGE PETER CLARK :

The appellant, Mr Peter Cude, was at all relevant times employed by Tesco Stores at their Leatherhead branch and a member of the West Surrey Branch of the respondent trade union, USDAW. He held lay office in the union as a shop steward and safety representative at the store.It is common ground that he was expelled from the union at a special branch meeting held on 23rd February 1995.Following his expulsion the appellant presented an originating application to the Industrial Tribunal in May 1995. He made two complaints; first that he had been unjustifiably disciplined within the meaning of s.65 of Trade Union and Labour Relations (Consolidation) Act 1992 ; secondly, that he had been unlawfully expelled from the union contrary to s.174 of the same Act.There was a directions hearing which resulted in a letter from the tribunal dated 2nd November 1995 to the parties. In that letter it is said:
"2. The Applicant has brought another action under Section 174 of the Act, but Section 66(4) of the Act provides that where a complaint relating to an expulsion which is presented under this Section is declared to be well-founded no complaint in respect of the expulsion shall be presented or proceeded with under Section 174. Further, Section 177(4) of the Act provides that where a complaint relating to an expulsion under Section 174 is declared well-founded no complaint in respect of the expulsion shall be presented or proceeded with under Section 66. In those circumstances the two matters could not be tried together and the Application was required to elect which of them he wished to proceed with first. He elected to proceed with his Section 64 application."
The matter came before an Industrial Tribunal sitting at London (South) on 13th to 15th March 1996. In a decision dated 24th April 1996, the tribunal dismissed the originating application. It is clear from the extended reasons given by the tribunal on that occasion, that they were essentially concerned with the claim under s.64 to 66 of the 1992 Act; and for the reasons given, that claim was dismissed. However, the reasons say nothing about the claim under s.174 which in any event an earlier tribunal Chairman had directed should be heard consecutively in the event that the claim under s.64 to 66 failed.Mr Cude has appealed against the tribunal's decision on a number grounds. He has alleged bias on the part of the tribunal, and has also contended that the tribunal erred in law in a number of respects. Having considered his submissions, we reject them in relation to the complaint under s.64 to 66, and for the reasons given by the Industrial Tribunal consider that that part of the tribunal's decision must stand.However, we are concerned that the complaint under s.174 was not before the Industrial Tribunal sitting on 13th to 15th March, and on that basis, bearing in mind the direction given on 2nd November 1995, we consider that that part of the appeal only, should proceed to a full hearing before the Employment Appeal Tribunal.It therefore follows that the Notice of Appeal will be struck out with the exception of the first paragraph under the heading "ERROR OF LAW ON THE FACE OF THE RECORD", in which the appellant says:
"1. The Tribunal had no jurisdiction to dismiss the Originating Application brought under s.174 1992 Act."
That is the point which he may argue and the only point which he may argue at the full hearing of this appeal.