MR DAVID BEAUMONT v AMICUS MSF [2004] UKEAT 0122_03_1202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0122_03_1202Case No Appeal No. UKEAT/0122/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR DAVID BEAUMONTAPPELLANTAMICUS MSFRESPONDENT
Before
His Honour Judge Birtles Mr D EvansDate 12 February 2004
[1]APPEARANCES For the Applicant THE APPLICANT IN PERSON For the Respondent MS J EADY (of Counsel) Instructed by: EAD Solicitors 125-131 Picton Road Wavertree Liverpool L15 4LG HIS HONOUR JUDGE BIRTLES This is an Originating Application under section 67(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 . It follows the Decision of an Employment Tribunal sitting at London Central on 14 October 2002. The Chairman was Mr G P Sigsworth and the members were Mrs D Harlow and Mrs A D Hills. The Decision of the Tribunal was sent to the parties and entered in the register on 24 December 2002.[2]The unanimous Decision of the Tribunal was that:
"(i) By consent it is declared that the Applicant was unjustifiably disciplined by the Respondent when he was expelled from the union, contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992 (ii) The Respondent is ordered to pay costs to the Applicant in the sum of £1,381.40"
[3]At a review hearing, before the same Tribunal, on 31 October 2003 the Employment Tribunal varied its original Decision on costs and substituted an Order for costs payable by the Respondent to the Applicant in the sum of £1.035.40. No issue arises in this Originating Application as to costs. Preliminary matters[4]At the beginning of the hearing we informed the parties that no member of the Tribunal was or had been a member of the Amicus MSF trade union or any of its predecessor trade unions. Mr Beaumont asked whether any of us knew Mr Roger Lyons, the General Secretary of the Respondent trade union and also a lay member of the Employment Appeal Tribunal. Judge Birtles indicated that he has sat with Mr Lyons on one occasion, some two weeks previously, but had not discussed Mr Beaumont's case. Indeed, he did not know on that date that he was to hear the present case. Mr Evans indicated that he had met Mr Lyons some considerable time previously. Mrs Matthias had never met Mr Lyons. The reason for raising this matter was because the background to the expulsion of Mr Beaumont from the Respondent trade union arose from allegations Mr Beaumont had made about Mr Lyons' conduct as General Secretary.[5]Mr Beaumont produced a late bundle of 268 pages. Permission of the Registrar or a Judge is needed if the bundle exceeds 100 pages: Practice Direction paragraph 6(3). Ms Eady did not object to the bundle being produced and I therefore gave permission. The Originating Application[6]As already stated, the Originating Application is made under section 67(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 .

(b) which states (insofar as it is material) as follows:

"(2) An application under this section shall be made to the Employment Appeal Tribunal if, when it is made - (a) (not relevant) (b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination; and in any other case it shall be made to an [employment tribunal]"
[7]It seemed to us that the proper way to approach this Originating Application was to divide it into two. First, we had to be satisfied, on a balance of probabilities, that the union had failed to take all steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination of the Employment Tribunal. If, and only if, we were so satisfied could we go on to consider the issue of compensation. If we were not so satisfied, then we had a discretion to remit the matter to an Employment Tribunal for the assessment of compensation: section 67(4). The parties agreed with this analysis and the hearing before us on 21 November 2003 only considered whether or not we had jurisdiction to hear the claim for compensation. The material facts[8]There is a long standing dispute between Mr Beaumont and senior members of the Respondent trade union. It is not necessary for us to go into those details at all, save to say that on 25 February 2002, the National Executive Committee of the Respondent trade union expelled the Applicant from membership. That decision was communicated to the Applicant on 28 February 2002. He appealed against that decision. On 22 May 2002 the Applicant presented a Originating Application to the London Central Employment Tribunal complaining of being unjustifiably disciplined by the Respondent trade union, contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992 . On 14 September 2002 the National Executive Committee Minute records the following: "The NEC remains of the view that the correct factual decision was taken concerning Mr Beaumont and that the allegations made against him were proper. The contentions which he has raised are without foundation and have been addressed by the union and others who have reached the same conclusion. The union has taken legal advice concerning the claim being pursued in the Employment Tribunal and that advice had confirmed that in these specific circumstances determination of the truth of allegations made against an individual such as Mr Beaumont is only partially relevant to the test which will be applied by an Employment Tribunal. Therefore, having confirmed their view as to the facts of the case, the NEC was prepared to lift the disciplinary sanction against Mr Beaumont and to withdraw his expulsion from the union on appeal. It was AGREED that the President and General Secretary should advise Mr Beaumont of the above." [Applicant's bundle page 83][9]On 10 October 2002 the Respondent conceded the Applicant's case before the Employment Tribunal and on 14 October 2002 the London Central Employment Tribunal made the Order set out above. The Applicant's submissions[10]The Applicant's case is set out in a document at EAT bundle pages 8 - 9. "This document is my application for an award of compensation as per the Trade Union and Labour Relations (Consolidation) Act 1992 section 67(1) "An individual whose complaint under section 66 has been declared to be well-founded may make an application for one or both of the following - (a) an award of compensation to be paid to him by the union." I make the application to an EAT rather than an ET under section 67(2) of the 1992 Act:
"an application under this section shall be made to the Employment Appeal Tribunal if, when it is made …. (b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination;"
. In my view the union have not restored the status quo ante: • They have not withdrawn any of the charges made against me which resulted in my expulsion, indeed they have repeated them. • They have not withdrawn or rescinded letters which they sent to my branch and to my regional council instructing those bodies to cease sending me mailings. Since my re-instatement, no instructions have been given to either body that communication with me should resume. • They have made no apology to me for my period of expulsion. • They have billed me for subscriptions for the period for which I was expelled. • The seven breaches of the union's own rules in expelling me have not been investigated despite being listed in my internal appeal. • They have not disclosed to me crucial documents including the very investigation report that gave rise to my expulsion. • They have not paid me the expenses which I was awarded at the Employment Tribunal. They have cynically misrepresented the Employment Tribunal declaration in published minutes of the union's Executive, and have not reported that I won my case. • They have made a pretence that my re-instatement was the conclusion of an internal appeals process. • They have behaved vexatiously and unreasonably throughout my enforced recourse to law."[11]At the hearing before us the Applicant confined himself to five specific allegations only, and so far as is relevant to our Decision, we dismiss those complaints contained in the Originating Application which were not argued before us by the Applicant. The specific allegations made by the Applicant were as follows:(1) Because he was expelled from membership from 25 -28 February 2002 to either 14 September 2002 (date of NEC decision) or 14 October 2002 (date of Employment Tribunal declaration) he was deprived of the benefit of membership of the trade union. In other words union membership for this purpose acts as a kind of insurance so that if anything had happened to the Applicant in this period of time he would have not been able to seek the assistance and financial support of the union e.g. if he had had an accident at work. The Applicant does not suggest that he had any need to call upon the union's assistance or resources during this period of time.(2) The Applicant contended that he had lost continuous membership of the union during the period of expulsion and would thus be precluded for a number of years for standing for various positions within the union. Reference was made to the MSF Rules for January 1999, and in particular 19(c) and 20(d). The Applicant did not suggest that it was his intention to stand for any such position.(3) The Applicant's third contention was based upon a failure by the union to rescind a letter dated 25 February 2002, written by Mr Roger Lyons, the General Secretary, to his branch: Applicant's bundle pages 204 - 205. That letter said this:
"Dear Colleague David Beaumont (Hounslow & Feltham) Branch: Termination of membership The NEC at its meeting held on 23 February 2002, received a report on behalf of the NEC Disciplinary Panel established to consider complaints in respect of the content of a Web Site operated by Mr David Beaumont (Hounslow & Feltham Branch). Following consideration, the NEC endorsed the report in its entirety and agreed that the actions of Mr Beaumont were of such a serious nature as to be incompatible with continued membership of the union. In accordance with the provisions of Rule 15(a) the NEC has agreed without dissent that Mr Beaumont's membership be terminated forthwith. The member concerned has been advised of the above decision and the relevant appeals machinery (see copy letter attached). I am therefore confirming on behalf of the NEC that with immediate effect the following will apply: a) That no amicus, MSF Section material distributed on behalf of the union - either at National, Regional or Branch level (other than communications from my office in respect of his right of appeal) should be addressed to David Beaumont. b) That David Beaumont should be excluded from all future meetings convened on behalf of amicus, MSF Section - either at National, Regional Council or Branch level and is not now entitled to hold office or represent amicus, MSF Section in any capacity whatsoever. Please ensure that this decision is strictly adhered to. Any breach of this decision may lead to disciplinary action being taken against the individuals responsible. I am also drawing this letter to the attention of the London Regional Council Secretary in respect of strict adherence by the Regional Council to this decision and also to the relevant NEC members for London Region for information."
The union took no attempt to revoke that letter either following the Applicant's reinstatement to the union by the NEC on 14 September 2002 or after the Employment Tribunal declaration on 14 October 2002. Furthermore, it was not until after his Branch Chairman had written on 20 December to the General Secretary: EAT bundle page 239, did the General Secretary reply on 16 January 2003: Applicant's bundle page 240. That letter said this:
"Dear Mr Wilkinson Suspension of Mr Beaumont Thank you for your letter dated 20 December 2002 (received on 15 January 2003) concerning the above. Please find enclosed a copy of my letter (dated 24 September 2002) to Mr Beaumont confirming that his membership of the union has been re-instated. I also enclose as copy of the NEC Minutes (dated 14 September 2002) issued to all Regional Councils and Branches which includes details of the NEC decision on this matter and confirming that the disciplinary sanction relating to Mr Beaumont had been withdrawn [Ref Minute 4629 (p1)]. I trust this information will clarify the issues raised by your letter."
The Branch's confusion at that answer was followed by the Branch Chairman's letter to the General Secretary: Applicant's bundle page 247-248 which said this:
"Dear Mr Lyons Subject: Suspension of Mr Beaumont Thank you for your letter of 16 th January 2003, enclosing a copy of the relevant NEC minute. Unfortunately it does not clear up the following issues: Your letter to this branch of 25 th February 2002, by contrast, was very clear, it said that "with immediate effect [bold underlined] the following will apply:" 1) "
That no amicus MSF Section material distributed on behalf of the union …. Should be addressed to David Beaumont. 2) "That David Beaumont should be excluded from all future meetings" 3) That David Beaumont "is not now entitled to hold office or represent amicus MSF Section in any capacity", I must tell you that the branch is currently implementing numbers (1) and (3) pending instructions from you. Therefore Mr Beaumont is currently not in the position he was in before being expelled from the union We are not excluding him from meetings (2), this is not practical in any event as our meetings are held in an open public house. In the NEC minute you enclosed, the NEC still state "that the correct factual. Decision [expulsion] was taken concerning Mr Beaumont and that the allegations made against him were proper". Only in the antepenultimate of seven paragraphs does it say "The NEC was prepared to lift the disciplinary sanction". Which of the three disciplinary sanctions is this, or is it all? Furthermore the minutes say that only Mr Beaumont is to be advised of this, what about his Branch? You can hardly be said to have taken all necessary steps to undo your hasty expulsion of, and disciplinary sanctions against, Mr Beaumont. Please would you clearly instruct the branch which, if any, of the above three disciplinary sanctions still apply to Mr Beaumont. If it is too late to get an instruction in as timely manner as the sanctions were applied but we would appreciate that the instructions from you revoking specific disciplinary sanctions against our member are made as clearly as your original instructions to impose sanctions. I do not think this is an unreasonable request." The General Secretary replied on 3 April 2003 in a letter which was supplied to us by Ms Eady:
"Suspension of Mr Beaumont Further to your letter dated 8 March concerning the above and in response to the specific issues raised in your letter, I confirm. That Mr Beaumont has been re-instated to membership and thus is permitted to attend and to participate in Branch and Regional Council meetings - indeed he has been doing so since his re-instatement was confirmed to him. In addition, he is entitled to receive all material and communications as applicable to every other member of the union. In respect of his entitlement to hold office within the union. This issue remains the subject of a separate NEC Disciplinary Committee that also involved the suspension from office of Mr Beaumont and other former Officers of London Regional Council. This issue predates and is separate from the issue to which Mr Beaumont was previously excluded from membership. The work of the NEC Panel on this matter is ongoing and Mr Beaumont has been made aware of the outstanding issues that are part of the remit of this Disciplinary Panel." (4) The Applicant makes the same complaint in effect in respect of communications to the London Regional Council of the union. This is because the letter of 25 February 2003 was copied to the London Regional Council Secretary: Applicant's bundle pages 204 - 205. The Applicant asserts that the London Regional Council were in the same state of confusion as his Branch: Applicant's bundle 241 - 246. (5) Finally, the Applicant submits that there was unnecessary delay in reinstating his subscription as a member of the trade union and that he should have been billed for subscriptions so that he could get continuous membership. As a matter of fact documents supplied by the Applicant confirm that by 26 November 2002 the Applicant's membership record "has been amended to credit him with subscriptions for the period that he was suspended by the NEC"
. In other words, the Applicant was not billed for the membership dues for the period of expulsion (not suspension) but the union credited his subscription account so that there was no loss of continuity of membership: see Applicant's second bundle page X6 (letter from Mr Mike McLoughlin, Head of Membership Department). The Respondent's submissions[12]Ms Eady makes the following submissions, adopting the same numbering:(1) There is nothing the union can do to restore the status quo ante because there was no claim by the Applicant during the period of expulsion and therefore there is no necessity for the union to take any step. It would be otherwise if e.g. if the Applicant had had an accident at work.(2) The Applicant was billed for his subscription for membership dues and was specifically credited for the period of expulsion: Applicant's second bundle page X6. The Applicant accepted that he had been credited. In effect, Ms Eady said, not only had the status quo ante been restored but the Applicant had received a financial benefit in that he had not had to pay his membership dues for the period of expulsion. He was therefore to be treated as in continued membership and can therefore stand for whatever office he is eligible for.(3) The NEC Minute of 14 September 2002 was sent out to all Branches and Regions some three weeks after that date. That is made clear by the General Secretary's letter to the Applicant's Branch, dated 16 January 2003: Applicant's bundle page 240. That fact was also accepted by Mr Beaumont in a concession to us. Ms Eady therefore submits that Minute is sufficient and satisfies the requirements of section 67(2)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 . Ms Eady also argues that the General Secretary's letter of 25 February 2002: Applicant's bundle page 204, simply sets out the consequences of the decision to expel the Applicant from the union. It does nothing else. Once the NEC has withdrawn the expulsion the consequences of the expulsion are also withdrawn.(4) Ms Eady makes the same submissions in respect of the notification to the London Regional Council.(5) Finally, Ms Eady argues that this issue is not contained in the Originating Application: EAT bundles pages 8 - 9. Indeed, it suggests the opposite. It also says that the effect of the NEC decision on 14 September 2002 is to withdraw the expulsion. Indeed, that is the wording of the NEC Minute: Applicant's bundle page 83. The effect of that together with the credit for subscriptions means that the Applicant has been fully reinstated and that there is no loss of continuity in membership. The Law[13]The relevant parts of section 67 of the Trade Union and Labour Relations (Consolidation) Act 1992 provide as follows:
"67.—(1) An individual whose complaint under section 66 has been declared to be well-founded may make an application for one or both of the following— (a) an award of compensation to be paid to him by the union; (b) an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in section 64(2)(b). (2) An application under this section shall be made to the Employment Appeal Tribunal if, when it is made— (a) the determination infringing the applicant's right not to be unjustifiably disciplined has not been revoked, or (b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination; and in any other case it shall be made to an Employment Tribunal. (3) An application under this section shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date. (4) Where the Employment Appeal Tribunal or Employment Tribunal is satisfied that it would be required by virtue of subsection (2) to dismiss the application, it may instead transfer it to the tribunal to which it should have been made; and an application so transferred shall be proceeded with as if it had been made in accordance with that subsection when originally made. (5) The amount of compensation awarded shall, subject to the following provisions, be such as the Employment Appeal Tribunal or Employment Tribunal considers just and equitable in all the circumstances."
[14]The first and most important thing to note is that the date when we decide whether we have jurisdiction to hear the Applicant's claim for compensation is the date "when it is made": section 67(2). In this case the Originating Application was received on 5 December 2002. The Order by Mr Justice Burton dated 26 February 2003 gives the Applicant permission to amend his Notice of Appeal so as to re-constitute it as an Originating Application. In our judgment that amendment must be backdated to when the Notice of Appeal was first received by the Employment Appeal Tribunal. As we have stated that date was 5 December 2002.[15]It follows that the date on which we have to decide whether the union has failed to take all the steps necessary for securing the reversal of the expulsion is 5 December 2002: section 67(2). The Employment Appeal Tribunal Decision[16]We deal with each of the Applicant's submissions in turn.(1) While it is correct, as a matter of fact that the Applicant was not in union membership for the relevant period and was thus deprived of the benefits of membership, he made no claim and sought to make no claim in respect of those benefits of membership, in particular, the concept of "insurance" already referred to. The Applicant had no accident at work and did not seek the legal assistance of the union on any matter. There were therefore no steps which it was necessary for the union to take. If we are wrong about that then the union did reinstate the Applicant to membership and credited him with the subscription for the relevant period: Applicant's second bundle document X6. That letter is dated 26 November 2002. It is before the 5 December 2002.(2) Our second decision on ground (1) also applies to ground (2). The effect of the letter of 26 November 2000 from Mr McLoughlin makes it crystal clear that the Applicant has been credited with subscriptions "for the period you were suspended by the NEC". It does not matter whether one calls it "expulsion" or "suspension". The fact of the matter is that by crediting the Applicant with subscriptions for the relevant period, there is continuous membership. The letter from Mr McLoughlin pre-dates the 5 December 2002: Applicant's second bundle page X6.(3) We referred the parties to National and Local Government Officers Association -v- Courtney-Dunn [1991] ICR 784 which was a decision of the Scottish Employment Appeal Tribunal. To the best of our knowledge it is the only reported authority on what is now section 67 of the 1992 Act. The facts of the case are peculiar in that the Scottish Employment Appeal Tribunal upheld a complaint from the applicant that the union had failed to take all necessary steps to secure the reversal of his expulsion from the union because it had initially informed the employer that it should no longer deduct his union contributions from his salary, then failed to obtain the applicant's signature for a mandate to reinstate those monthly contributions from the employer. It dismissed a submission that the applicant himself could have approached his employer and requested that the deduction for union membership be resumed. We were assisted as to what section 67(2)(b) meant by the following passage in the judgment of Lord Mayfield:
"It is clear from the facts that, on 9 October 1989, the applicant's union membership was terminated. He was expelled from the union. On 2 February 1990, that decision to expel him from membership was revoked. At that date, no union contributions had been deducted from his salary since September 1989. The wording of the Act in section 5(2)(b) requires the trade union to take all such steps as are necessary for securing the reversal of anything done for the purpose of giving effect to that determination. In our view, the import of the section is that the union is required to put the member back into the same position he was in before he was wrongly expelled. The section requires the reversal of anything done for the purpose of giving effect to the determination. What was done in this case by the union was that deductions for union dues were stopped, and have not been resumed. In the view of this appeal tribunal, it is no answer to the requirement of the section to state that the applicant could have himself resolved the position by approaching Tayside Regional Council. We do not agree with the submission made on behalf of the union that "necessary" meant "requisite" or "indispensable"
. In our view, the industrial tribunal asked themselves the right question, that is to say, whether the trade union had failed to take all such steps as were necessary for securing the reversal of anything done for the purpose of giving effect to the determination. In our view, whether or not the necessary steps were taken was a matter to be determined by the industrial tribunal on the facts before them. In this case, they came to the conclusion that the union had failed in the requirements of the section by merely stating that the expulsion had been revoked. The industrial tribunal found as a fact that the union had failed to approach the applicant or Tayside Regional Council, with a view to securing the applicant's signature to a mandate which would have ensured the resumption of automatic monthly deductions of trade union contributions from salary. In other words, they held that the trade union had failed to rectify the situation or to secure the reversal of what they had done in the first place. In these circumstances, we dismiss the appeal." [1991] ICR 784 at 789E - 790B. Ms Eady argues that the Courtney-Dunn decision can be distinguished because it is a decision about communication by the union to a third party. In this case there is no dispute that the NEC resolution of 14 September 2002 was sent to the Branch and the London Regional Council. We disagree. In our judgment, this distinction is fallacious. Indeed, in Courtney-Dunn itself the Industrial Tribunal specifically rejected the union's submission that the requirements of the section were complied with by merely stating that the expulsion had been revoked: [1991] ICR 784 at 789I - 790A. In our judgment, the letter from the General Secretary dated 25 February 2002 to the Branch: Applicant's bundle page 204 - 205, was detailed and gave clear and specific instructions to the Branch about the expulsion of the Applicant and how to deal with that expulsion. It was a necessary step for the union to take to revoke that letter by writing to the Branch in equally clear and unequivocal terms. The subsequent correspondence from the Branch (although it post-dates 5 December 2002) makes clear the confusion that resulted from the Branch's receipt of the NEC Minute prior to that date. Furthermore, as the Applicant pointed out, the Branch gets the whole of the NEC Minutes and that was simply one small part of the Minutes for 14 September 2002. In our judgment there was a breach of section 67(2)(b) of the 1992 Act. (4) For the same reasons, we think there was a failure by the Respondent to take all necessary steps to notify the London Regional Council in specific terms about what the effect of the reversal of the Applicant's expulsion meant. (5) Finally, we turn to the issue of the subscription. As we have pointed out, it is quite clear from the letter dated 26 November 2002 from Mr McLoughlin: Applicant's second bundle page X6, that before 5 December 2002 the Applicant had been credited with the subscription for the period of his expulsion and was in continuous membership on that expulsion being revoked. In effect the slate was wiped clean. The fact that the union originally intended to charge the Applicant for that period and subsequently changed its mind is irrelevant. Conclusion[17]For these reasons we are of the view that the Applicant has satisfied us, on a balance of probabilities, that the Respondent has failed to take all the steps necessary for securing the reversal of his expulsion from the union, following the declaration granted by the Employment Tribunal on 14 October 2002. It follows that he is entitled to bring a claim for compensation in the Employment Appeal Tribunal and that a claim will be determined at a date to be fixed. The claim for compensation will be limited to the two grounds on which we have found in the Applicant's favour. Directions[18]We indicated in the course of the hearing that because of the unusual nature of the Originating Application procedure in the Employment Appeal Tribunal that it was desirable for us to give directions to enable the compensation hearing to run smoothly. Neither party dissented from this view. We are therefore minded to make the directions listed in the annex to this judgment. If either party wishes to make submissions on those draft directions, they must do so within fourteen days of the date of the judgment being handed down. Any submissions will be dealt with by His Honour Judge Birtles in Chambers.[19]For the avoidance of doubt, we make it clear that our power to award compensation is limited by section 67(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 . This is set out earlier in this judgment and the limiting factor is the well known principle that the award of compensation must be one which the Employment Appeal Tribunal "considers just and equitable in all the circumstances". We do not accept Ms Eady's submission that we are limited to consideration of compensation for the failure by the Respondent to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the declaration granted by the Employment Tribunal: section 67(2)(b). In our judgment, it is clear that because an applicant must wait for at least four weeks beginning with the date of the declaration in order to see if the union does comply with the declaration, but fails to do so: section 67(3). Then the applicant must bring his application in the Employment Appeal Tribunal: section 67(2). That is what the Applicant did in this case. He waited for the appropriate four week period (it in fact was a little longer) and by 5 December 2002 the union had failed to comply (as we have found) with section 67(2)(b). It cannot have been the intention of Parliament to prevent the Applicant from recovering the compensation he could have recovered in the Employment Tribunal if the union had complied with section 67(2)(b).[20]However, we do not accept the Applicant's contention that it is open to him on a compensation hearing to seek to argue the merits of his expulsion and investigate before us the rights and wrongs of his allegations against the Respondent's General Secretary and other senior officials of the union. In our judgment the formula "just and equitable" means that the Employment Tribunal can, for example, compensate for injury to the Applicant's feelings or compensate for high-handed behaviour on the part of the union. It does not mean that we can or will investigate the truth or otherwise of the Applicant's allegations against the General Secretary or other senior officials of the union. We flatly refuse to do so. In our view the compensation that we can award is compensation for the manner of dismissal and its effects upon the Applicant. That starts in time from the date of the expulsion i.e. 25 February 2002. Discovery -the Applicant's application for disclosure.[21]The Applicant renewed his application for further disclosure of documents which he said were necessary to pursue his claim for compensation. The matter first arose in a letter dated 21 May 2003 from the Applicant to the Registrar: EAT bundle pages 20 - 21. That application was further supported by a facsimile letter received by the Employment Appeal Tribunal on 25 June 2003: EAT bundle pages 24-26. The application for disclosure was refused by the Registrar on 8 July 2003: EAT bundle page 27. The Applicant lodged an appeal against that decision out of time by an e-mail received at the Employment Appeal Tribunal on 7 November 2003: EAT bundle pages 28 - 30.[22]This part of the judgment is the judgment of His Honour Judge Birtles alone because an appeal from an Interlocutory Order of the Registrar lies to a Judge sitting alone and not to a full panel of the Employment Appeal Tribunal: Employment Appeal Tribunal Rules 1993 Rule 1(1).[23]Rule 21(2) of the Employment Appeal Tribunal Rules 1993 make it clear that Notice of Appeal from the decision of the Registrar must be given within five days of the decision appealed from. The Registrar's decision was dated 8 July 2003. The Notice of Appeal was received on 7 November 2003. It follows that the Notice of Appeal is some seventeen weeks out of time (not ten days as Mr Beaumont asserts: his e-mail of 23 July 2003 is not a Notice of Appeal). In deciding whether to extend time for appealing I pay particular attention to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of this Tribunal and the Court of Appeal as summarised in United Arab Emirates -v- Abdelghafar [1995] ICR 65 and Aziz -v- Bethnal Green City Challenge Company Ltd [2000] IRLR 111 .[24]Judge Birtles has carefully considered the Applicant's e-mail dated 7 November 2003 which largely sets out an exposition of the authorities referred to above. The only reason put forward by the Applicant for making an appeal some ten days out of time is the following:
"I now fully appreciate that my first application to review the decision was made more than five days after the decision, in fact ten days outside the time limit. However I was not informed of the time limit for appealing and I am unrepresented in this case. I believe I should have been informed of this time limit at the time of rejection and that the EAT knew at this time that I was unrepresented. This accounts for that delay. Therefore I request that the EAT overlook the time limits as per section 37(1) and (3)."
[25]In my judgment, the fact that a person is unrepresented is immaterial. It is not the function of the EAT to inform parties of time limits. That is a matter for the parties to ascertain themselves. In my judgment, this explanation is not an explanation which satisfies the guidance set out in the decisions above. I would therefore refuse the application for disclosure on that ground alone.[26]If I am wrong about that I consider the merits of the application. I have indicated that the list of documents which the Applicant wishes disclosure of is contained in his letter to the Registrar dated 21 May 2003. I do not propose to go through them. It is quite clear from reading them that they all pre-date the dismissal and, as the Applicant candidly admitted, go towards to him arguing the fairness or correctness of the decision to expel him from the union. In my judgment that is irrelevant to the question of what is just and equitable compensation. In other words, there is no causal connection or relevance between the documents which the Applicant seeks disclosure of and the issue of compensation to be dealt with at a later hearing. For that reason also the application for disclosure is refused. DRAFT DIRECTIONS