MRS DENISE FORCER v BAKERS FOOD & ALLIED WORKERS UNION [2001] UKEAT 0658_00_2009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0658_00_2009Case No Appeal No. EAT/0658/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS DENISE FORCERAPPELLANTBAKERS FOOD & ALLIED WORKERS UNIONRESPONDENT
Before
His Honour Judge D SerotaDate 20 September 2001
[1]APPEARANCES For the Appellant MR C BOURNE (of Counsel) Messrs Archers Solicitors Barton House 24 Yarm Road Stockton on Tees TS18 3NB For the Respondent MR P DRAYCOTT (of Counsel) Messrs Whittles Solicitors Pearl Assurance 23 princess Street Albert Square Manchester M2 4ER HIS HONOUR JUDGE D SEROTA QC This is an appeal from a decision of an Employment Tribunal sitting at Newcastle-on-Tyne on 6 March 2000 which was promulgated on 14 April 2001. The Employment Tribunal determined that a number of complaints made by Mrs Denise Forcer in relation to claims against a trade union, the Bakers Food & Allied Workers Union, were out of time.[2]A Preliminary Hearing took place before the Employment Appeal Tribunal on 5 February 2001. At that point in time Mrs Forcer was seeking to appeal in relation to claims of unlawful expulsion from a trade union, unlawful exclusion from a trade union, unjustifiable discipline by a trade union, sexual discrimination by a trade union, breach of contract by a trade union and conspiracy by a trade union. The Employment Appeal Tribunal considered that there was material that would justify a Full Hearing in relation to the first three heads of appeal but not in relation to the remaining three. It is those three matters that come before us today. We shall return shortly to the basis of the decision of the Employment Tribunal on those matters.[3]We will now say something about the background of this matter. Mrs Forcer joined the union in July 1989. She had begun her work with a company known as Sweet 'n Savoury Frozen Foods in Hartlepool. She ceased to be an employee on 7 May 1997 and was unemployed until September 1998. There was a disciplinary hearing at Sweet 'n Savoury in which, apparently the union failed to represent her, giving rise to a complaint by her against the union. She commenced proceedings in September 1997 against her former employers, Sweet 'n Savoury, on the basis of sex discrimination and unfair dismissal. Although the union had agreed to represent her, in fact it did not do so.[4]It is necessary to examine the correspondence that passed between Mrs Forcer and the union from June 1997 onwards. On 11 June 1997, that is after the termination of her employment with Sweet 'n Savoury, she wrote to the union making various points and in particular asking what her rights and entitlements were as a union member. She wanted this to be clarified and asked that this should be given immediate attention. It should be borne in mind that the union's case appears to be that after she became unemployed her membership of the union ceased when she failed to pay the very modest quarterly contribution that the union sought from unemployed members.[5]On 20 June 1997, Mr Marino, the General Secretary of the union, wrote to Mrs Forcer; he noted that her complaint against Sweet 'n Savoury was before an Industrial Tribunal and taking it to be the case that it would he handled by the union solicitors. He suggested that she contact the Organising District Secretary, Mr Alan Milne, for details. He noted that whilst at the annual conference of the union he had discussed the case with another union official, Mr Rooney, and noted Mrs Forcer's comment in her letter that Mr Rooney would represent Mrs Forcer at the hearing. He hoped that all would go well. There is nothing in that letter to suggest that Mrs Forcer's membership of the union was in question.[6]On 16 March1998, Mrs Forcer wrote to Mr Rooney and stated that she wished to make a complaint against the Branch Secretary of the union, that is Mr Rooney himself. Mrs Forcer set out in her letter a number of grounds for complaint. Essentially it was that Mr Rooney and the union had done little or nothing to protect her and had failed to act in her interests. A response was received from Mr Milne, the District Secretary, on 26 March 1998. He wrote:
"It has been brought to my attention that you have been on certified sick leave from your Company during the past year but have received no sickness Benefit from our Union."
He therefore enclosed a Sickness Certificate and invited Mrs Forcer to complete it and return it. Mr Milne was aware that Mrs Forcer was now unemployed and indicated that she was entitled to claim unemployment benefit by completing the enclosed cards. He enclosed thirteen cards for her to complete, one for each week of her entitlement. The letter concludes:
"Once this documentation has been provided, we can then pay the Benefit due."
[7]After a chasing letter of 30 March 1998, Mrs Forcer wrote again to Mr Rooney on, 28 May 1998. She complained about the conduct of a fellow member of the union and a shop steward at Sweet 'n Savoury, Mr Trevor Wilson; the precise basis of the complaint does not matter.[8]On 8 June 1998 Mrs Forcer wrote to Mr Marino complaining that she had not received responses to her complaint about Mr Rooney, and also Mr Wilson and suggested that Mr Rooney was in breach of union rules. This elicited a response from Mr Marino dated 12 June 1998. Mr Marino makes no suggestion in this letter that Mrs Forcer was excluded or was at risk of being excluded from the union, and he invites Mrs Forcer to supply him with various information.[9]On 20 July 1998 Mrs Forcer wrote to Mr Milne, District Secretary of the union. She wrote concerning various complaints and expressed her concern that her complaints had not been addressed. She also asked for copies of various documents including the rules, membership rights and procedures for pursuing grievances and complaints of harassment including sexual harassment, sexual discrimination and racial discrimination. She stated that she intended to follow her rights within the union to the highest level if no further action was taken.[10]On 28 July 1998 Mr Milne acknowledged the letter and stated:
"I am taking steps to investigate your concerns and intend to discuss the matter with the Union's Solicitor. Once I have carried out these initial enquiries I will return to you. I would expect to be in a position to respond substantively by the 14 th August."
[11]On 17 August 1998 Mr Milne wrote to Mrs Forcer and said he had had the opportunity of considering the matter further. However, he stated that before he was able to activate the complaints procedure he needed to clarify the situation with regard to her membership of the union. He stated that:
"According to our records you have not worked since January 1997 and were in receipt of Union Sick Pay up to an including 15 th May 1997. Since that time we have no record of you having paid any subscriptions to the Union and, if that was so, then your membership has lapsed."
He invited Mrs Forcer to clarify her membership position, upon receipt of which he would consider what further steps could be taken.[12]On 19 August 1998 Mrs Forcer wrote back. It is to be noted, as submitted by Mr Bourne, that in the letter of 17 August 1998 there is no positive assertion that Mrs Forcer had ceased to be a member of the union, only a conditional assertion, and this was answered robustly by Mrs Forcer who quoted the rules and stated that according to the rule her membership had not lapsed because contributions were not due in the case of members being certified sick or out of work. There was no immediate response to this letter.[13]On 4 September 1998 Mrs Forcer sought information from Mr Rooney about 'Gold Card Discounts'. She wrote on 4 September to Mr Milne asking that the information she had previously requested should be made available. On 21 September 1998 she wrote again to Mr Milne complaining that she had still not received the information she had sought. She stated in her letter:
"I can therefore only assume that I am a member of the Union and that full contributions are due from commencement of Temporary Part time employment."
She sent a cheque for £7.20 and asked that that should be acknowledged by the forwarding of a union membership card duly endorsed. The cheque was neither banked nor was it returned.[14]That letter crossed with a letter from Mr Milne dated 21 September1998 in which he states:
"I still do have to clarify your position with regard to membership."
He also suggested that unemployed members could retain membership by paying a contribution of £1.75 per quarter and asked Mrs Forcer to state the precise date upon which she became unemployed and whether she had made those payments. She was also asked to explain the nature of here temporary part time employment.[15]Mrs Forcer wrote on 9 October 1998 and again mentioned that she had not received the information which she had sought in a number of letters. She pointed out that the union's own records should confirm the date she was made unemployed and the amount of payment of exempt contributions. She stated that she was still registered at the Unemployment Benefit Office seeking full time work and sent a cheque in the sum of £8.75 for union membership contributions. She again asked that this should be acknowledged by the forwarding of a union membership card duly endorsed. The letter concludes:
"I note, yet again, you question my status as a Union Member. Please act according to 'Rules' and reply by return of post."
Again, this cheque was retained but neither banked nor returned.[16]On 23 October 1998 Mr Milne writes again. This letter is a letter of particular importance so far as the decision of the Tribunal is concerned. We quote:
"I refer to previous correspondence. I am not convinced that you were a member of the Union following your unemployment in accordance with our rule. Having said that however, I do not believe that is necessarily material to your complaint. I am taking the steps to convene a Branch Committee meeting to consider your complaints against Mr Rooney and Mr Wilson. I will advise you of the date, time and venue of the meeting in due course. You will be welcome to attend the meeting to put forward your case should you so wish. If however, you wish to deal with the matter by means of a written submission, please let me know whether there are any additional documents or points which you wish to put."
We just pause there for one moment. We do not see how, in the light of earlier correspondence, this letter could possibly be read as a clear statement that Mrs Forcer had ceased to be a member of the union. Furthermore, although doubts were expressed, it is quite clear that the union was prepared to convene a branch committee meeting to consider complaints and that act was only consistent with her being treated as continuing to be a member of the union. The letter does not state for example, that the subscriptions she tendered were being refused, nor does it state in terms that she was not a member of the union, nor does it state that she was to be deprived of the rights appertaining to membership.[17]So far as we can tell between October 1998 and June 1999 no relevant documents were generated. Certainly, none were put before the Employment Tribunal.[18]On 7 June 1999 Mrs Forcer wrote to Mr Rooney to complain that she had heard that a ballot had been held to elect a new president and she enquired why she did not receive notification of the ballot and why she was denied her entitlement to vote by post. She also complained that she had not received the union's annual financial statement. She also stated:
"I am also having difficulties in obtaining information with regards to my status as a Union Member, could you please therefore arrange for myself to inspect the Union's Membership registrar." [sic] This letter drew a response from solicitors, Messrs Whittles, instructed by the union, in which Messrs Whittles state: "…. we are instructed that you are not entitled to the information requested under Rule, in that you are not a member. Your membership lapsed when you ceased employment with Sweet & Savoury Frozen Foods Limited."
[19]This appears to have been the first occasion when there was a specific refusal of benefits to her; benefits we regard in a wide sense including her request for information and copies of financial statements. This was also the first unequivocal statement that she was not a member. This letter raises a number of difficult issues. For example, if Mrs Forcer ceased to be a member when her employment with Sweet 'n Savoury Frozen Foods ended, why was it that thereafter she received sickness payments and unemployment payments? It would seem that she received benefits which took account of the period up until September 1997 although those were not paid until several months later. The letter of 12 July 1999 triggered a response by Mrs Forcer and she presented her complaints on 8 October 1999.[20]At the hearing which took place on 6 March 2000 the Employment Tribunal held that her claims were all out of time, (we will come to the relevant statutes shortly) and that she had failed to prove it was not reasonably practicable to bring her complaints within the appropriate time. When the matter came before the Employment Appeal Tribunal, as we have already mentioned earlier this year, the Tribunal considered that the 3 complaints which we have mentioned, of unlawful expulsion, exclusion from the union and unjustifiable discipline, disclosed an arguable point of law which should proceed to a Full Hearing. We quote:
"The point is a short one. Was the Tribunal entitled to conclude that time for bringing those complaints ran from the letter from Mr Milne of 23 October 1998, in which he said that he was not convinced that the Appellant was a member of the union, or ought it, as the Appellant submitted below, to run from the date of the receipt of the solicitor's letter dated 12 July 1999 when for the first time it was made clear that the union was denying that she was a member."
[21]We now refer to the relevant statutory provisions. Section 64 of the Trade Union Labour Relations Consolidation Act 1992 provides that:
"(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, ………………………….. (d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union."
By virtue of Section 66(2) of the Act a complaint must be presented:
"(a) before the end of a period of three months, beginning with the date of the making of the determination claimed to infringe the right, or (b) where the tribunal is satisfied – (i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or (ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed, within such further period as the Tribunal considers reasonable."
Section 174(1) of the Act provides:
"An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section."
The time limit for proceeding under Section 175 is that the complaint must be presented:
"(a) before the end of the period of six months beginning with the date of the exclusion or expulsion, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the tribunal considers reasonable."
We note that there is no definition in the Act as to the meaning of exclusion or expulsion from a trade union.[22]When the matter came before the Employment Tribunal, the Employment Tribunal dealt with these matters in paragraphs 9 and 10. They noted:
"We first of all have to find, for an event which triggers off the complaints. When those events have been defined the three-month period had to be applied and then the six-month period. The two claims by the applicant of unjustified discipline, and exclusion from the union, can really be dealt with together. She complains that she was not represented at the grievance hearing and that Mr Rooney and Mr Wilson did not address her requirements in that regard properly and she was not given proper support by the union."
It seems to us that that refers to a complaint of conduct by the union at a time when Mrs Forcer was employed by Sweet 'n Savoury and was therefore indisputably a member of the union. She instructed outside solicitors to represent her at the Employment Tribunal and was therefore aware that the union was not supporting her in that regard. It may well be that the complaints in relation to failure of the union to provide Mrs Forcer with benefits to which she would be entitled were she a member continued, and that such conduct was capable of amounting to unjustifiable discipline within meaning of Section 64 of the Act.[23]The Tribunal went on to say:
"So far as being a member of the union is concerned, that comes somewhat later, in August 1998. On 17 August Mr Milne queries her membership of the union; he says that there are no records of her paying subscriptions. The applicant would be fully aware that if she did not pay her subscription she would not be able to continue as a member of the union. We interpolate here. We do not know the basis upon which that finding is made by the Employment Tribunal: On 9 October 1998 she says in her letter to Mr Milne that "you are questioning my status as a union member", she is therefore saying in that letter that 'my union membership is in question'. She recognises that on 23 October 1998 Mr Milne says in his letter that he was not convinced that she was a member. The Tribunal must take it from that correspondence and what the applicant has said in evidence that she was aware that there was a very large question mark in regard to her membership of the union, and she was therefore being deprived of all her rights of the union because of her not being a member. "
We pause there. It may well be that Mrs Forcer was aware of a question mark over her membership of the union but it does not follow that because there was a question mark over her membership she was being deprived of her rights in the union because she asserted she remained a member. Indeed the evidence strongly suggest that she was not deprived of the benefit of membership, in that in the letter of October 1998 the union made it clear that it was going to continue with the grievance procedure. The Tribunal continues:
"It was indicated to her that membership appeared to have lapses [sic] as far as the union was concerned, since her unemployment. The Tribunal is therefore quite clear that the date on which these two events, if they can be so called, occurred, was at the latest October 1998. At that time the applicant was aware that the union was disclaiming her membership and because of that, and possibly because of other matters that appear to have gone on between certainly both Mr Rooney and Mr Wilson, they were denying her benefits at that time. She had not been given legal representation at the hearing, and she had not been given support at the Grievance Procedure, and they were now denying that she was a member of the union. they had paid her Unemployment Benefit and Sickness Benefit or were in the process of doing so, but there was then and should have been, in the mind of the applicant, a big question mark as to her membership of the union. If that is the case, and we are all agreed that it is, then the three month period in regard to presenting a claim to the Tribunal is 30 January 1999 or approximately that date, and the six month period is 30 April 1999 and therefore the applications are clearly out of time"
The Employment Tribunal appear to have held at this point that because there was a question mark over her union membership, she was being deprived of membership rights. That does not follow from there having been a question mark, and indeed, as we have noted, it does not appear to have been the case on the evidence.[24]We were somewhat concerned at the outset of this case as to when and how it was that Mrs Forcer had in fact been excluded from membership of the union. It is a remarkable fact that this was not really considered by the Employment Tribunal and that the rules of the union were never placed before the Employment Tribunal. We have been shown a witness statement of Mr Milne that was filed with the Tribunal but does not appear to have been referred to. We have looked at this de bene esse . Mr Milne was not called and therefore his evidence was not relied upon. But in Mr Milne's witness statement he refers to the union rules and if the rules as quoted by Mr Milne are correct, the union lacked the ability to exclude a member who had failed to pay dues without, not only calling a branch meeting, but also warning the member and giving the member the opportunity to appear.[25]We invited counsel who appeared on behalf of the union, Mr Draycott, to state when it was that Mrs Forcer had ceased to be a member of the union and in what circumstances. He was wholly unable to provide any convincing explanation as to how it was that she came to be excluded. Indeed, it seems to us, most likely that if the union's officers did no more than take the view - 'Oh well, she has not paid her subscriptions so her membership has lapsed' – they were quite wrong, and they lacked the power under the union's rules to exclude her from membership until they had complied with those rules. It seems to us that the failure to consider this matter is a fatal flaw in the reasoning of the Tribunal because, if Mrs Forcer remained a member of the union, any deprivation of benefits would entitle her to make a complaint, and there is no doubt in that regard that she was deprived of benefits by being refused information she would be entitled to receive as a member of the union on 12 July, so her complaint in that regard would have been in time.[26]We feel bound to say that we regard the reasoning of the Employment Tribunal as to the effect of the letter of 9 October 1988 as being wholly untenable. It seems to us that simply raising a question mark over membership cannot be equated with exclusion unless it could be regarded as a notification of an exclusion that had already taken place. There was no basis, as it seems to us, upon which the Tribunal could possibly find that at that point in time, as a matter of law, Mrs Forcer had in fact been excluded from membership of the union or expelled from membership of the union. Furthermore a fair reading of this letter in its context, as it seems to us, does no more than express a doubt about her membership, a doubt which was not only challenged by Mrs Forcer, but was supported by the fact that the union took steps to investigate her complaint. This suggests that she was regarded as a member, and was entitled to prosecute her grievance, or that she had been at the material time.[27]Our attention has very properly been directed by Mr Draycott to the decision of the House of Lords in the case of Carmichael v National Power plc [2000] IRLR 43 and to a decision of the Court of Sessions Scotland on Walmsley v V&R Ferguson Ltd [1989] IRLR 112. Mr Draycott submitted that the question of construction of the correspondence based on those decisions was essentially a question of fact for the Tribunal. We are not certain that that is an appropriate conclusion from those authorities but even were that to be the case we do not consider that the construction of the letter of 23 October 1998 is tenable. In any event it is irrelevant unless it could be shown that the exclusion or expulsion had already taken place.[28]Mr Draycott drew our attention in Section 64 to the fact that an individual was disciplined if a determination was made or purportedly made under the rules of the union or by an official of the union. He suggested that the use of the word 'purportedly' was to cover those cases where a wrong determination was made or a determination outwith the rules. However, as it seems to us, it is not a tenable construction of the October letter that any officer of the union had made such a determination. There was no more than an expression of doubt.[29]Mr Draycott also very properly drew our attention to the guidance in the case of Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 in which Mummery J, as he then was, gave guidance to the Employment Appeal Tribunal as to the need for extreme caution in concluding that a decision of an Industrial Tribunal was flawed because the Appeal Tribunal would have reached a different conclusion on the evidence. We have regard to his guidance as set out in paragraph 33 of the decision.[30]Having taken that guidance into account we nonetheless have come to the conclusion that the decision of the Employment Tribunal in this case simply cannot be justified. It seems to us that there was no justification for a finding by the Tribunal based on the construction of the letters that we have referred to, and anything else that the Tribunal may have heard from witnesses, that the trigger event was the letter of 23 October 1998 so far as exclusion and expulsion was concerned. We also take the view that, unless the Tribunal had been in a position to make findings as to the date when the expulsion or exclusion took place, that the claim in relation to unjustifiable discipline was also brought in time.[31]In those circumstances and for those reasons we allow this appeal and this case should go before the Employment Tribunal for a hearing on the merits.