Walker v Royal College Of Nursing [1998] UKEAT 101_98_1802

EAT
Walker v Royal College Of Nursing
[1998] UKEAT 101_98_1802 · 1998-02-18

JUDGE PETER CLARK :

The Appellant, Miss Walker, was a member of the Respondent Trade Union. She was also employed by the Respondent as a lecturer in midwifery from 1 August 1991 until she resigned from that position in May 1993.On 17 July 1996 she presented a complaint of unjustifiable discipline against the Respondent to an Industrial Tribunal (case number 44818/96; the first complaint).By a Notice of Appearance dated 10 October 1996 the Respondent set out its grounds for resisting the first complaint.By a letter dated 18 February 1997, signed by Kim Barrett on behalf of the Respondent, the Respondent sought leave to amend its Notice of Appearance in terms of a draft enclosed with the letter. Under the heading "Particulars" the proposed amendment pleaded at paragraph 7.2:
"The circumstances of the Applicants resignation were that she had falsified a financial reference from the Respondent for the purposes of obtaining an extension to her mortgage. This was an offence and the Applicant could have been summarily dismissed. However, the Respondent generously invited the Applicant to resign and also paid her salary in lieu of contractual notice and accrued holiday entitlement."
The first complaint came before a Chairman, Mr J.C. Metcalf, sitting alone at London (North) on 19 March 1997 for determination of a preliminary issue, namely, whether the complaint was presented out of time. The Chairman held that it was, and dismissed the first complaint for reasons promulgated on 15 April 1997. A subsequent application by Miss Walker for a review of that decision was dismissed by the Chairman on 12 June 1997.By a further Originating Application dated 8 May 1997 (case number 2202656/97; the second complaint) the Appellant made a further complaint of unjustifiable discipline against the Respondent. The nature of her case, pleaded in box 11 of her form IT1, was as follows:
"On 18 February 1997 a determination was made in writing on behalf of officials of the Union that I had committed an offence.
I have asserted, and assert, that the Union has breached its charter and rules, also other rules of law.The Union has not secured the reversal of its actions and has not compensated for its actions."The second complaint was also resisted by the Respondent. The second complaint came before a full Industrial Tribunal chaired by Mr D.H. Roose, sitting at London (North) on 21 October 1997. The complaint was dismissed on the grounds that the Appellant had failed to make out her case that she had been unjustifiably disciplined within the meaning of Section 65(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 .Right not to be unjustifiably disciplined .Section 64 of the 1992 Act provides:
"(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.
(2) For this purpose an individual is 'disciplined' by a trade union 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 -(a) he should be expelled from the union or a branch or section of the union,(b) he should pay a sum to the union, ...(c) sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, ... should be treated as unpaid or paid for a different purpose,(d) he should be deprived to any extent of, or of access to, any benefits, services or facilities ...(e) another trade union ...

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

and whether an individual is 'unjustifiably disciplined' shall be determined in accordance with section 65."By Section 65:
"(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."
By subsection 2:
"(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."
Miss Walker contends that the pleading in paragraph 7(2) of the amended particulars sent by the Respondent with their letter of 18 February 1997, and repeated by an officer of the Union and Counsel for the Respondent at the hearing of the first complaint on 19 May 1997, constituted a determination by an official of the Union that she should be subjected to a detriment within the meaning of Section 64(2)(f) and constituted unjustifiable discipline as defined by Section 65(2)(c) of the Act.We reject that submission. In our judgment the amended pleading in the first complaint, whether or not it amounted to an abuse of process in those proceedings as Miss Walker contends, cannot amount to a determination that she should be subjected to a detriment, construing that expression in the context of the specific forms of discipline set out at (a) - (e) of Section 64(2).For these reasons, which differ from the reasoning of the Industrial Tribunal, we shall dismiss this appeal.