Appeal No.	EAT/1434/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 May 1998

Before
HIS HONOUR JUDGE D M LEVY QC
MR D J HODGKINS CB
MR R JACKSON

MRS P J SMITH	APPELLANT

UNISON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M WESTGATE
(of Counsel)
Messrs Hudson Freeman Berg
Solicitors
94 Gloucester Place
London
W1H 4EE
	
For the Respondent	MR J GALBRAITH-MARTEN
(of Counsel)
Instructed by:
Mr Bruce Piper
Director of Legal Services
UNISON
1 Mabledon Place
London
W1H 9AJ	

	JUDGE LEVY QC:	Mrs Patricia Smith appeals from a decision of an Industrial Tribunal promulgated on 12th November 1996 following a hearing which took place at London (South) on 25th October 1996. The Industrial Tribunal held that it did not have jurisdiction to entertain the complaint made by Mrs Smith in an Originating Application dated 7th June 1996, claiming that she was excluded from membership of the respondent by reason of the provisions of s. 175 of the Trade Union and Labour Relations (Consolidation) Act 1992 [“the 1992 Act”].

	The sequence of events which led to that decision are these, so far as are significant for this appeal. On 29th August 1995 the appellant applied to join the respondent; her application was not received until October 1995. There was a meeting of the appropriate committee of the respondent on 30th November, when the respondent determined not to permit her to become a member. The information as to that decision was sent to Mrs Smith on 17th December 1995 in a letter which contains these paragraphs:

“Following a recent meeting of the Branch Executive I am writing to you to explain our refusal to accept you into membership.
Your membership application was routinely considered by the Executive, but was refused for reasons indicated below ... [Those reasons are then set out.]
In the light of the above the Executive decided that it would not be in the interests of the Union to accept you into membership. You have the right to appeal against this decision by writing to the Regional Appeals Committee [whose address was given].”

	Mrs Smith did not exercise that right of appeal. She made a complaint to the Industrial Tribunal on 13th June 1996. When that complaint came up for hearing, it was decided it was out of time.

	The appeal raises two short points which arise from the consideration of the appropriate sections of the 1992 Act. The first is this where an application for trade union membership fails is an applicant “excluded” for the purposes of s. 174 of the 1992 Act on the date on which the decision is made to reject the application or the date on which the applicant is advised of the rejection. The second point is if the earlier date is applicable, was the Industrial Tribunal in this case entitled to decide that it was reasonably practicable for the applicant to present her complaint within six months of exclusion.

	The first point turns on the wording of s. 175 of the 1992 Act which has to be read in the context of s. 174. The relevant subsections of s.174 read:

	“(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.
	(2)  The exclusion or expulsion of an individual from a trade union is permitted [It is not necessary in the context of this subsection to set out the various grounds on which exclusion is permitted] ...
	...
	(5)  An individual who claims that he had been excluded or expelled from a trade union in contravention of this section may present a complaint to an industrial tribunal.”

	S.175 reads:

“An industrial tribunal shall not entertain a complaint under section 174 unless it is 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.”

	The first point of appeal turns on subsection (a), the second point turns on subsection (b) but with reference to subsection (a).

	The Industrial Tribunal held on the construction of s. 175(a) that the period of six months began with the date of the exclusion of Mrs Smith which the tribunal concluded was the date of the meeting of the Branch Executive of the union.

		Mr Galbraith-Marten who appeared for the respondent below and has appeared before us today, submits on the first of the grounds of appeal that it is a question of fact not a question of law for the tribunal to decide this, and once it has been determined against the appellant that is that. 

	So far as this aspect Mr Galbraith-Marten’s submissions we do not accept it. It must be a matter for a tribunal to construe the section of the 1992 Act to decide the question of law which arises in the circumstances. As to that construction itself, in our judgment, it is quite clear that the section itself is clear. It says “beginning with the date of exclusion”. The date that Mrs Smith was excluded from the union was, in our judgment, the date of the meeting of the Branch. Up to that time there was an application from her to be included as a member of union. On that date the appropriate committee of the Branch, at the routine meeting, decided that she could not be included. It seems to us, notwithstanding the valiant submissions of Mr Westgate, a contrary construction is not permissible.

	Mr Westgate has taken us to various other sections of the 1992 Act and compared the different wordings of those sections. He has suggested to us that there is a distinction to be made between the decision to refuse membership or to exclude a member from membership and the implementation of that decision by notifying the applicant or by actively excluding them. He has suggested that there should be a purposeful construction of the section which favours the appellant’s approach. Mr Westgate has referred us to the Shorter Oxford Dictionary on the meaning of the word ‘exclude’. The first explanation given in the dictionary is:

(1)	Deny entry or access to; shut out from a place;
(2)	Deny membership or participation to; debar from a right or privilege; prohibit from an activity.

	In our judgment, the decision of the Executive or Committee on the date when it met was the date of the decision to refuse membership to exclude the appellant from membership. There had to be an act to communicate that decision to her, but the decision was taken, in our judgment, quite clearly on the date it was taken. The judgment of the Industrial Tribunal on the facts, it having properly decided that the date of exclusion was the date of the meeting, was one of fact which was the only one it could reach in the circumstances.

	Both Counsel have referred us to the decision of Cheall v United Kingdom 45 DR 178. We do not think that the decision in that case is of particular assistance to us to reaching the conclusion which we have reached.

	Mr Westgate has also referred us to the passage in Brown v Southall & Knight [1980] ICR 617 where Slynn J, as he then was, giving the decision of the Employment Appeal Tribunal said:

	“It seems to us that it is not enough to establish that the employer has decided to dismiss a man or, indeed, has posted a letter saying so. That does not itself, in our view, terminate a contract. Nor, in our view, is it right, in looking at the matters as the industrial tribunal did in considering the reasonable steps taken by the employer, to look solely at what the employer does and to ask whether that constitutes the taking of reasonable steps. In our judgment, the employer who sends a letter terminating a man’s employment summarily must show that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it. If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him. That, however, id not happen in this case.”

That of course is a passage which is looking at the different section of the predecessor of this Act relating to dismissal; we do not find the approach there of assistance when construing the provisions of a completely different section of an Act which dealing with a different scenario.

	The next issue to arise was as to reasonable practicability of Mrs Smith to commence proceedings in the statutory time provided. We have been referred by both Counsel extensively to the very well-known decision of the Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372. There May LJ giving the judgment of the Court analysed at some length earlier decisions of various Courts on what was the meaning of ‘reasonably practicable’ and came to a conclusion, which many other Courts had reached, that it was a decision of fact for the Industrial Tribunal to make. 

	It appears to us that that holding is one which applies to us, unless we consider that the Industrial Tribunal has clearly got it wrong. In our judgment, in this case, the Industrial Tribunal has not got it wrong. In the extended reasons, the Industrial Tribunal carefully considers the different matters which were put before it by the applicant’s representative and the evidence given to it by the applicant before it came to the conclusion that it was reasonably practicable for the applicant to have commenced these proceedings within the six month period provided by the Act. In paragraph 7 of the extended reasons the tribunal say this:

“7	We are satisfied that the date of exclusion was 30 November 1995, albeit that we are critical of the Respondent in that the letter of 17 December 1995 failed to tell the Applicant of the date of exclusion, so that she did not know without enquiry the date from which time ran in which to submit a complaint. Time ran out on 29 May 1996, the last day for receipt of a complaint. However, after receipt of the letter of 17 December 1995, she had over give months in which to act. Even assuming she was under pressure due to the disciplinary proceedings against her, these were concluded before the end of January 1996, still leaving four months in which to lodge an Originating Application. She became aware of her right to bring a complaint while there was still two months in which to act and there is no evidence of events, or beliefs, or a medical condition affecting the Applicant, which would have made it impracticable for her to lodge a complaint in this time.”

	Mr Westgate has submitted that she might, as a matter of fact, not have known that the six month period would have been predicated against the date of UNISON’s decision, given the previous decisions on the case of reasonable practicability for her not to have commenced proceedings in time. This was a matter which was debated below in the Industrial Tribunal. In our judgment, the decision of fact to which the Industrial Tribunal came is one which it was entitled to reach in the circumstances.

	We know that this judgment will be a disappointment to Mrs Smith, but having heard a further application can be made to the union at any time for membership, we hope that this will lead to other avenues for her to explore in the future.