Walker v Royal College Of Nursing [1997] UKEAT 734_97_1310

EAT
Walker v Royal College Of Nursing
[1997] UKEAT 734_97_1310 · 1997-10-13
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing was to determine whether Miss Walker has an arguable point of law in an appeal which she wishes to make against a decision of an Industrial Tribunal (Chairman sitting alone) held at London (North) on 19th March 1997. The application which was before the Industrial Tribunal was made under s.64 of the Trade Union and Labour Relations (Consolidation) Act 1992 . That provides that an individual who is a member of a trade union has the right not to be unjustifiably disciplined by the union, and for that purpose, "disciplined by a trade union" is defined in subsection (2) of that section as including:
"(2) ... if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that-
. ..

(f) he should be subjected to some other detriment; ..."

It is Miss Walker's contention that she has been the victim of a determination made by an official of the union which has subjected her to detriment. The act of determination on which she relies for the purposes these proceedings, is a letter of 18th April 1996 written by a Debra Keddy, Chair of the Royal College of Nursing's Fertility Nurses Group, Miss Keddy is an elected official of the Royal College of Nursing, a trade union of which the applicant is a member and against whom she has brought her complaint.The Industrial Tribunal Chairman set out the facts as he understood them to be, and in paragraph 3 noted that by a letter dated 13th September 1995 the Chair of the respondent's Council, the governing body of the trade union, Judith Hunter, informed Miss Walker that any future correspondence she might have should be pursued with the Royal College's personnel manager, a Mr Trevor Peirce. The Chairman continued:
"Notwithstanding this, some months later, on 23 January 1996, Miss Walker wrote to Miss Hancock, the General Secretary of the RCN. Essentially her complaint was the same then as it had been at the very outset some 2½ years earlier. A further letter was written to Miss Hancock on 26 February 1996.
4 On 7 March 1996 Mr Trevor Peirce, to whom this correspondence had been passed, wrote a short letter in which the concluding sentence was "The RCN has nothing further to add to the already lengthy exchange of correspondence.""Miss Walker has pursued her complaint against the union with persistence and vigour, and she wrote in March 1996 to Debra Keddy, the Chair of the Fertility Nurses Group. The reason why she wrote to that particular person related to the substance of her complaint, which is that sometime back in 1993, she had prepared a paper for submission for an award being offered by the Nursing Times and sponsored by 3M. She complains that the union without, as she says, consulting her, withdrew the nomination in respect of this award. It is that act which has caused Miss Walker to write as she has persistently done, because she feels that she has been the victim of an unfair decision. She wrote to Debra Keddy therefore, in connection with the work that she had done which was being submitted for an award and then withdrawn, in the hope that she could continue with that work, or to offer assistance in relation to it. In accordance with what we understand to have been the policy of the union as set out in the letter of 13th September 1995 and as repeated, effectively, on 7th March 1996, Miss Keddy wrote saying that copies of past correspondence from Miss Walker had been sent to Mr Trevor Peirce, the personnel manager at the Royal College of Nursing and any future correspondence would be dealt with in the same way.The Industrial Tribunal Chairman was satisfied that the letter of 7th March 1996 from Trevor Peirce to Miss Walker could have constituted a determination, but that the letter of 18th April 1996 did not constitute a fresh determination within the meaning of statute, since it was simply, in effect, repeating the position of the union which had been taken up since 1995.Miss Walker seeks to persuade us that in fact the letter of 18th April 1996 was to be treated differently from the letter of 7th March 1996. She points out that the letter of 7th March 1996 was written by an employee of the union, whereas the letter of 18th April 1996 was written by an official of the union who was an elected member but not an employee. She also seeks to draw a difference between the two letters on the basis that the letter to Miss Keddy was in relation to the work that could be carried out in the future, whereas the earlier letter was not in relation to that, but rather in relation to her complaint of the way she had been treated.Whist we understand the points which have been made by Miss Walker, we are not persuaded that there is any merit to them. It seems to us very clear from the tribunal's decision that in September 1995 the trade union, rightly or wrongly, had formed the view that all future correspondence should be dealt with by the personnel officer, and it was in accordance with that policy, that the letter of 18th April 1996 was written.Quite apart from any question as to the difficulty of establishing a detriment, about which we are not at all convinced, it seems to us that the Industrial Tribunal were well entitled to take the view that the letter of 18th April 1996 did not constitute a new act of a determination such as to start time running again. Accordingly, the tribunal were entitled to conclude that 7th March 1996 was the date from which time ran, that 18th April 1996 was not a new determination, and therefore, they were entitled to dismiss her complaint brought under s.64 of the 1992 Act as being out of time.Before leaving this appeal, we should add that it seems to us that there is an ongoing sense of grievance which Miss Walker feels about the way she has been dealt with. It seems to us that the union might well wish to explore the possibility of inviting a third party mediator to assist in the dispute. Whatever its outcome, it is unsatisfactory that one of the union members should be left with a burning sense of injustice. If, through the mediator, her position could be properly explained to the union and the union's position explained to her, at least she could know that her claims had been fully and sympathetically considered. So far as the law is concerned, we are satisfied that the decision of this Industrial Tribunal cannot be faulted.