Appeal No.	 EAT/658/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 FEBRUARY 2001

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR A D TUFFIN CBE

MRS DENISE FORCER	APPELLANT

BAKERS FOOD & ALLIED WORKERS UNION	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D G SHIPLEY
Brother of Appellant	

JUDGE CLARK

1.	By an Originating Application presented to the Newcastle Upon Tyne Employment Tribunal on 8 October 1999 the Applicant, Mrs Forcer, listed the following complaints against the Respondent Trade Union, Bakers Food and Allied Workers Union (the Union);

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 (ie failure to follow its own rules)
Conspiracy by a Trade Union at an Industrial Tribunal to avert (pervert) the course of natural justice

2.	On 6 March 2000 the application came before an Employment Tribunal chaired by Mr N W Garside for Preliminary Hearing.  As a result, all heads of complaint were dismissed by a decision with Extended Reasons promulgated on 14 April 2000.  Against that decision Mrs Forcer now appeals.

The Facts
3.	Between 3 November 1988 and 15 May 1997 the Appellant was employed by a Company, Sweet and Savoury Frozen Foods in Hartlepool.  From July 1989 she was a member of the union for the rest of that employment.  She was unemployed until September 1998.  Whether or not she remained a member of the union after the termination of her employment is a matter that has been in dispute between the parties.

4.	Her employment terminated in circumstances which she alleged constituted unfair constructive dismissal.  She had also made an allegation of sexual harassment against an employee of the company, also a member of the union, during her employment in 1996.

5.	She instituted Employment Tribunal proceedings against the Company which came on for hearing on 9 and 10 October 1997.  The claim was dismissed.  During that hearing 2 local union representatives, Messrs Rooney and Wilson, gave evidence on behalf of the Company.  Their doing so is said to constitute the act of sex discrimination in the present proceedings brought by the Appellant against the union, coupled with the union’s failure to properly deal with a complaint which she made to the union in connection with that matter.

6.	From and since March 1997 the Appellant has pursued complaints against the union.  Correspondence on behalf of the union was dealt with initially by Mr Milne, the District Secretary.  On 23 October 1998 he wrote to the Appellant saying:

“I am not convinced that you are a member of the union following your unemployment, in accordance with our rule.”

Further correspondence ensued between solicitors acting for the union and the Appellant.  By a letter dated 29 March 1999 the union solicitors wrote:

“The Respondents are not admitting that [Mrs Forcer] was a member of the union or was at that time a member of the union.”

The Appellant was apprised of that letter’s content by her solicitors in April 1999.

7.	In June 1999 she wrote again to the union asking for information about the election of the President and the union’s finances.  The Union solicitors replied by letter dated 12 July 1999 stating that she was not entitled to the information she requested as she was not a member of the union.

The Employment Tribunal decision

8.	The Employment Tribunal record, at paragraph 2.7 of their reasons, that the Appellant was not pursuing her claims of breach of contract and what is described as victimisation.  As to the remaining claims the Employment Tribunal considered the question of limitation and concluded:

(1)	that the sex discrimination claim dated from the original Employment Tribunal hearing in October 1997 and was thus, having been presented in October 1999, well outside the 3 months limitation period provided for in s76(5) of the Sex Discrimination Act 1975.

(2)	that the unlawful exclusion/expulsion claims, brought under s174 of the Trade Union and Labour Relations and Consolidation Act 1992 (the 1992 Act) arose on receipt of Mr Milne’s letter of 23 October 1998.  The 6 month limitation period provided for in s175 of that Act expired on 30 April 1999.

(3)	that the same trigger date applied to the complaint of unjustifiable discipline by the union, brought under s64 1992 Act, and thus the 3 month time limit under s66 expired in late January 1999.

9.	The claims having been presented outside the ordinary limitation period, the Employment Tribunal further considered whether it was

(a)	just and equitable to extend time under the 1975 Act and

(b)	reasonably practicable for the complaints under the1992 Act to have been presented within time.

10.	They answered both questions in the negative, taking into account particularly that the Appellant had received legal advice at the relevant times that it was reasonably practicable for her complaints under the 1992 Act to be presented within time.  So far as the complaint of sex discrimination was concerned, they also took into account the time which had elapsed since the maters complained of.

11.	In these circumstances all complaints were dismissed.

The Appeal
12.	It convenient to deal with the 6 heads of claim in the Originating Application in reverse order; first, conspiracy by a trade union at an Industrial Tribunal to pervert the course of natural justice.  That claim together with the breach of contract claim was said by the Tribunal to have not been pursued by the Appellant.  Mr Shipley, her brother who appears on her behalf today strongly refutes that suggestion.

13.	However, it seems to us that the Employment Tribunal had no jurisdiction in any event to consider the conspiracy claim but further so far as the breach of contract claim is concerned, as we understand the provisions of the extension of Jurisdiction Order 1994 the jurisdiction of a Tribunal to entertain a complaint of breach of contract is limited to claims by employees brought against their employer following termination of their employment – see Article 3.  There is no jurisdiction to entertain a claim for breach of contract brought by a member against her trade union based on the contract formed by the rules of the union.  Such a claim can only be brought in the Civil Courts.

14.	Turning to the complaint of sex discrimination on the findings of the Tribunal the act of discrimination relied upon took place at the latest in October 1997 when 2 trade union representatives gave evidence on behalf of the Company against the Appellant at her then industrial tribunal hearing.

15.	Mr Shipley has submitted that there was an on going complaint made by the Appellant to the trade union which was never satisfactorily resolved.  We have considered whether it can properly be argued that that amounts to a continuing act of discrimination for the purpose of the 1975 Act.  We do not think that it can.

16.	In these circumstances the Tribunal were entitled to find that the sex discrimination claim was some 21 months out of time and further entitled in the exercise of their broad discretion not to extend time for bringing that complaint under the just and equitable provision.  Accordingly we dismiss the appeal against that part of the Tribunal’s findings.

17.	That leaves the 3 remaining complaints of unlawful expulsion/exclusion from the union and unjustifiable discipline.  As to those complaints we think that there is an arguable point of law which ought to proceed to a full hearing.  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.  That short matter will proceed to a full hearing.and we direct for that purpose that the appeal be listed for half a day, Category C.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be submitted to the Employment Appeal Tribunal at the same time.

18.	That leaves 2 further matters outstanding.  The first is an application by Mr Shipley on behalf of the Appellant for a direction that Mr Hantom, the union solicitor be directed to swear and file an affidavit in these appeal proceedings.  We have considered that application but reject it.  It seems to us that for the purpose of the limited point in this appeal the letter from Mr Hantom to the Employment Appeal Tribunal dated 3 November 2000 sufficiently sets out his position on the matter in issue.

19.	Finally, Mr Shipley raises this point, that before the Tribunal application was made to strike out the notice of appearance on the basis that the Respondent had failed to comply with earlier orders by the Tribunal for further and better particulars of the notice of appearance and for discovery.  That application was refused.  It is only in exceptional circumstances that such a strike out order would be appropriate and it seems to us again within the discretion of the Tribunal to have refused that application.

20.	But further, where the Tribunal has held that it has no jurisdiction to entertain the complaint because it is out of time questions of particulars and discovery which go to the merits of the application do not seem to us to be properly to be dealt with at the proceedings before Mr Garside’s Tribunal .  In the circumstances we dismiss that head of appeal.