Such v Transport & General Workers Union [1999] UKEAT 207_98_2201

EAT

Such v Transport & General Workers Union

[1999] UKEAT 207_98_2201 · 1999-01-22

THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mrs Such has an arguable point of law to raise in an appeal which she wishes to make against a decision of an Employment Tribunal which was promulgated on 14 November of 1997. By their decision, the Employment Tribunal rejected her complaint that she had been unjustifiably disciplined by the Respondents, The Transport and General Workers Union, and that she had been discriminated against on grounds of sex by them and she was ordered to pay £100 towards the Respondents' costs.

The Tribunal's decision was given following a three day hearing in October of 1997 and the Tribunal was chaired by a distinguished barrister who has considerable experience in this field and who was sitting in the Tribunal on this occasion. The Applicant represented herself. A Mr Whitty, described as Legal Director, represented the Respondents. The background to the case is set out clearly in the decision. Mrs Such was Branch Secretary in the Didcot branch from the early 1990's and then after a break, from 1 January 1996 until the end of December 1997. It was not a workplace branch. In other words, the membership of the branch were employees of many different employers. It had previously been what is described as "an office held" branch which involved the branch officer simply meeting with shop stewards, but otherwise was inactive as a branch. But it had more recently become what one might describe as a normal branch with a full committee and an active Branch Secretary, namely Mrs Such. But the Tribunal noted that there remained a culture of the Reading District Office continuing to regard the branch as an "office held" branch.

She put forward a case that her position as Branch Secretary was effectively undermined by the activities or sometimes the lack of activities of the District Office of the Union. Her effectiveness as a Branch Secretary depended to an extent on the efficient support of the Reading office, which she complained she was denied. She not only complains that she was not given the support which she considered was required for a Branch Secretary, but furthermore the District Officer interfered with work properly to be done at branch level so as to render the branch's activities of less importance and to some extent put in jeopardy the work that they had been doing.

The Tribunal having set out the background to her complaint then turned to the specific complaints which the Applicant had raised. The first question they turned to was the contention that she the Applicant was kept in the dark about information which she was properly entitled to as Branch Secretary. The Tribunal's conclusion was that there was a culture of treating Mrs Such's branch as an "office held" branch for historic reasons but that insofar as there were failings on the part of the District Office, these were no more than general administrative failings and they relied in support of their finding that the Applicant herself had so described the failings in a letter to which reference was made.

They further found that in relation to the complaint that she was being by-passed in relation to check off, the Tribunal held that the direct communication from the District Office to the workplace shop stewards was consistent with instructions which had been given for dealing with check off's. She made a complaint about what were described as adverse circulars. She saw them on her file in January 1996 for the first time as a result of the settlement of a previous complaint which she had brought against the TGWU and which had been settled.

In relation to the expenses paid for the National Disability Forum, she drew a distinction between the position of herself and the Chairman of the branch, a man. The man was given a car allowance to enable him to attend the Forum in the summer of 1996 whereas she was simply provided (and provided late in the day) with a travel warrant. The Tribunal heard evidence as to the circumstances in which the man came to be dealt with in the way which he was and concluded that the factors referred to in the decision were "sufficient reasons for Mr Eynon (the Chairman) to settle this claim exceptionally". The Tribunal pointed out that there were some 300 cheques a week signed by a department under Mr Eynon's responsibility and that the Respondents, the Union, did not pay expenses far in advance, and indeed in processing the Applicant's claims for expenses, alterations were made from time to time to ensure that she was paid the approved and usual allowance. Thus for example, on one occasion she claimed a lower subsistence amount than she was entitled to and that was altered in the normal course of business, to a claim for a larger figure.

There was a further reference by the Applicant in her complaint to the cost and feasibility of holding a meeting between the Applicant, the Reading District official, Mr Pickard, and a Mr Lees, as to whether this should be in Reading or at the Applicant's home. The Tribunal concluded that this was part of the normal discussion which took place every day of the week about the venue for a meeting. The official's efforts to see whether he could hold a meeting at Mrs Such's address were consistent with normal practice and eventually it was agreed that the meeting should be held in Reading. Thus, that aspect of her complaint was rejected. They considered also the allocation of members to particular trade groups, and the Tribunal noted that there was considerable scope for divergence of opinion as to exactly what trade group was appropriate in any given case. Therefore any dispute as to how members should be allocated was not an indication of any disciplinary action being taken or of discrimination against her.

The Tribunal rejected her complaint that there had been delay in paying expenses for the conference to which reference has already being made. They found that a travel warrant was issued to her just before the conference and in sufficient time. They turned finally to the opportunity for the Applicant to apply for the position of stand down officer. Such an officer was someone who was appointed to a short term temporary position in the Union. Invariably the selection had been by way of recommendation by those officers who worked close to the substantive post. The recommended candidates were from those who were involved in activity relevant to the substantive post for which a stand down officer was needed. The vacancies were never advertised. A man was selected for the post when it became vacant in June 1996. Nothing was known by Mrs Such about his previous involvement with the Union. There was no divergence from the normal procedure in selecting him. By June 1996, the Applicant was informed that the appointment had been made.

The Industrial Tribunal then set out the law in relation to unjustifiable discipline by reference to Section 64 of the 1992 Act and Section 1995. They referred to a decision Transport and General Workers Union v Webber . They then set out the law in relation to sex discrimination and as to time limits and they record in succinct and appropriate form in paragraph 26 of their decision, the parties' submissions. Their conclusion was expressed generally and by reference to the particular complaints. They started in this way in paragraph 27:

"We assess this matter very carefully and conclude that neither the sex discrimination nor the unjustifiable discipline claim was made out. In respect of the unjustifiable discipline claim, we had considerable difficulty in finding any evidence that there had been a determination by a union official, or any evidence that Mrs Such had been subjected to a detriment. Indeed many of the matters complained about were not in any way directed at her, but related to general problems in the Union's organisation and administration. Mrs Such was the type of Branch Secretary who wanted things to proceed as efficiently and smoothly as possible and to deliver a sterling service to her members always. We understood her sense of frustration when there was a failure on the part of the union organisation to maintain the same standard from time to time. Such failings were however unexceptional and did not constitute unjustifiable discipline under Section 64 and 65.

There is no need to set out in this judgment their findings on the individual matters which were relied upon. Suffice it to say, that they rejected them all as an indication either of discrimination on the grounds that she was a woman or as an example of some kind of determination of a disciplinary nature being taken against her which caused her a detriment. It was in the light of those findings and a previous decision of the Tribunal that she should pay a deposit as a condition of continuing the proceedings that they made their order for costs.

It is apparent to us from the hearing which took place that Mrs Such is considerably troubled by the way she perceives herself to have been treated by the Respondent Trade Union and that she is unable to accept the way the Industrial Tribunal has dealt with her complaint. The Applicant was ordered in accordance with our procedure to swear an affidavit setting out her complaints about the way the Tribunal had conducted itself and those complaints were put to the learned Chairman for her comments, which she has given. We are bound to say that in the light of the comments made by the Chairman, it is unsustainable to suggest that there has been some procedural error or misconduct on the part of the Industrial Tribunal and we unhesitatingly reject that part of the appeal.

The second, but I think principle point that was argued before us, was that the Industrial Tribunal had erred in law in not addressing her victimisation complaint. In her IT1, she had complained of victimisation by completing the relevant box. The Tribunal itself referred in paragraph 3 of its decision to the complaint of victimisation and dealt with it separately and distinctly from her complaint of sex discrimination. Yet it appears that the Industrial Tribunal in its conclusions has not dealt expressly with the case of victimisation. Thus it was argued that the Industrial Tribunal has erred in law in not dealing with an important aspect of her complaint.

We have to say that we do not consider that submission has any merit. Although the IT1 refers to victimisation, there were no particulars given to support it. The case of sex discrimination of which victimisation is simply a species, was fully and properly considered by the Industrial Tribunal. It is not their duty, in accordance with a recent decision of the Court of Appeal, to elaborate for the benefit of an unrepresented party an allegation of which the party themselves had given no details. The Tribunal were well aware that they were dealing with a claim of sex discrimination in whatever form. They have rejected roundly the complaint of discrimination. That in our judgment includes the claim of victimisation, which as we have said is simply a species of discrimination. Accordingly, that point does not seem to us to represent an arguable point of law.

Secondly, she would wish to argue that the Industrial Tribunal did not receive the full material which she had wanted it to look at. She is, effectively, we think, saying that there has been an error in law in the approach of the Industrial Tribunal to the evidence it should take into account when arriving at its decision. Again, we have to say that we regard that point as insupportable in the circumstances. The handling of a case of this sort is always likely to be difficult, bearing in mind the proceedings between the parties were very contentious. Judgments as to precisely what material they will find helpful and what material should be passed over are very much matters lying within the discretion and control of the Court which is managing a case such as this.

She was, as the learned Chairman has pointed out in her comments, entitled to refer to an audio tape which was made. Initially the Tribunal deferred a decision as to its admissibility but subsequently allowed her to play the tape, which lasted for some 17 minutes in full. But it did not advance the case and the Tribunal Chairman deals with the exclusion of evidence to rebut Mr Ashman's statement of 27 June in her response to the affidavit which was filed. It seems to us, that the allegation, that the Tribunal were not prepared to accept the full material, was an allegation of impropriety which was made in the affidavit to which there has been a satisfactory response from the learned Chairman.

The final point which was made is that she was concerned about what she described as the yob culture which existed within the Reading branch of this Union. She submitted that holding a position in a branch is a position of respectability and that the Union, despite displaying the yob culture in reality, was hiding behind a facade of respectability. We are unable to make any comment on that point. Those were the sort of matters which were no doubt canvassed by the parties in evidence and it was for the Industrial Tribunal to consider whether there was any substance in her complaints.

We have no doubt that Mrs Such is a diligent and responsible Union officer. She tells us that she has joined another Union where she is treated with due respect, and where she is currently holding an officer position. It is unfortunate that her relationships with the Transport and General Union Workers Union have led to this complaint. She was troubled by the fact that letters were on her file about which she has had no opportunity to deal; that she feels aggrieved that she has never really properly had a platform to clear her name in relation to allegations which have been made. Whilst we have some sympathy with her desire to clear her name, it may well be that the Industrial Tribunal procedure was being used by her as the platform to clear her name. If it was, of course the Industrial Tribunal were right not to make reference to matter which were irrelevant to the consideration of the legal issues which the facts as found by them gave rise to. Accordingly, we dismiss this appeal.