Appeal No. EAT/757/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 & 13 March 2003
Judgment delivered on 4 April 2003

Before
THE HONOURABLE MR JUSTICE KEITH
MR P DAWSON OBE
MR B M WARMAN

NOTTINGHAMSHIRE HEALTHCARE NHS TRUST	APPELLANT

(1) PRISON OFFICERS ASSOCIATION 
(2) R ADAMS & 716 OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS A MORGAN
(of Counsel)
Instructed By:
Messrs Hempsons
Solicitors
40 Villiers Street
London WC2N 6NJ	
For the Respondents	MISS M TETHER 
(of Counsel)
Instructed By:
Messrs Lees Whitley
Solicitors
Imperial House
15-19 Kingsway
London WC2B 6UN	

THE HONOURABLE MR JUSTICE KEITH:

Introduction

1.   On 5 April 2001, the Prison Officers’ Association (“the union”) presented an originating application to the employment tribunal.   The complaints which it made were made on behalf of itself and on behalf of 717 of its members.   The Nottinghamshire Healthcare NHS Trust (“the Trust”) was one of the respondents to the originating application, and it applied to the tribunal for an order striking out the originating application.   The issues raised by that application were considered by the tribunal as preliminary issues, and the practical effect of the tribunal’s decision was that the originating application, in so far as it was made on behalf of most of the 717 members of the union, should not be struck out.   The Trust now appeals against that decision.   At the conclusion of the hearing, we told the parties that the appeal would be dismissed, but that we would reduce our reasons into writing.   That we now do. 

The relevant facts

2.   The 717 members of the union were employed at Rampton Hospital (“the Hospital”).   The Hospital used to be run by the Rampton Hospital Authority (“the Authority”) which employed them.   With effect from 1 April 2001, the Authority’s functions were transferred to the Trust, and the Trust became the employer of the union’s members.   

3.   On 27 September 2000, the Authority decided to change the shift patterns of its workforce.   The Authority had been advised that 121 of the union’s members were employed under contracts of employment which did not permit their hours of work to be altered without their consent.   Accordingly, those 121 employees were sent letters dated 2 October 2000 terminating their employment with effect on 6 January 2001, and offering them new contracts of employment with effect from 7 January 2001 which incorporated the new shift patterns.   The remainder of the union’s members were believed to have contracts of employment which permitted their hours of work to be altered without their consent.   Accordingly, those employees were sent letters dated 2 October 2000 requiring them to work on the new shift patterns with effect from 7 January 2001.

4.   The union objected to the new shift patterns, and in any event it did not accept that its members’ working hours could be changed unilaterally by the Authority.   It registered a dispute under the disputes procedure.   In March 2001, the union informed the Authority that it was intending to ballot its members on whether industrial action should be taken.   The Authority threatened to apply for an injunction, though there was no finding by the tribunal whether that would have been to restrain the union from proceeding with the ballot or from calling on its members to take industrial action, and towards the end of March or the beginning of April the union decided not to proceed with the ballot.   In the meantime, the new shift patterns had been introduced on 7 January 2001 as planned.   The workforce worked to the new shift patterns, though many of them did so under protest.   

5.   The union believed that the dismissal of the 121 members of the union who had been actually dismissed was unfair.   It believed that the enforced change in the working hours of its other members amounted to their constructive dismissal which was also unfair.   The union took the view that the effective date of the termination of their employment would have been on 6 or 7 January 2001.   To be on the safe side, their complaints of unfair dismissal had to be presented to the employment tribunal by 5 April 2001.   Blank originating application forms had been made available by the union to its members.   By 4 April 2001 102 of its members had completed originating applications and they had been forwarded to the union’s solicitors.   The union thought that considerably more than the 102 of its members who had completed the originating applications by then wished to make complaints to the employment tribunal.   The union’s solicitors were concerned that the union could be criticised by those of its members who had not completed originating applications for allowing their claims to lapse, and they advised the union that a way around this difficulty would be for one originating application to be issued in respect of all the union’s members, and for a schedule setting out their names to be attached to the originating application.   The union accepted that advice, and that was how one originating application was presented to the tribunal on 5 April 2001.   

6.   In the originating application, the union was named as the first applicant, and its 717 members were named as the other applicants.   The union’s application was made under the Trade Union and Labour Relations (Consolidation) Act 1992.   It alleged that the Authority had failed to provide it with information or to consult with it in a proper and appropriate manner.   The application by its 717 members was made under the Employment Rights Act 1996 (“the 1996 Act”).   They alleged that they had been unfairly dismissed by the Authority, and they also sought a declaration of what their terms and conditions of employment were in respect of their employment by the Trust.   Finally, both the union and its members made claims under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“the 1981 Regulations”).   They alleged that the Authority and the Trust had failed to consult with them over the transfer of the employment of the union’s members from the Authority to the Trust.   

7.   The union’s solicitors subsequently wrote to all the union’s members explaining why the originating application had been issued in the way it had been, and requesting what the tribunal described as “the specific instructions of those individuals”.   We have assumed that what they sought was each employee’s approval for the action which the union had taken in his or her name.   By 24 October 2001 when the hearing was originally due to take place, and leaving aside the 102 members of the union who had completed originating applications before 5 April 2001, 

(i)  336 members of the union had, in the words of the tribunal, “expressed a wish to continue with the proceedings”, which we take to mean had given their approval for the action which the union had taken in their names, 

(ii)  111 members of the union had, in the words of the tribunal, “indicated that they did not wish to proceed”, which we take to mean had declined to give their approval for the action which the union had taken in their names, and

(iii)  168 members of the union had failed to respond to the union’s solicitors’ enquiries.

8.   The Trust’s application to strike out the originating application was originally made only on the ground that, to the extent that the members of the union were applicants, the originating application had been issued without their authority.   The tribunal found that the originating application had been issued with the authority of the 102 members of the union who had completed originating applications before 5 April 2001, but it found that the originating application had been issued without the authority of the other 615 members of the union.   It thereby rejected an argument advanced on their behalf that the union had had express or implied authority to issue the originating application on their behalf (“the agency issue”).   Of those 615 members of the union, the tribunal decided 

(i)  that the 336 members of the union who had subsequently given their approval for the action which the union had taken in their names had ratified the action which the union had taken (“the ratification issue”), and that the application on their behalf should not be struck out, 

(ii)  that the application on behalf of the 111 members of the union who had declined to give their approval for the action which the union had taken in their names should be treated as having been withdrawn, and that the application on their behalf should be dismissed on its withdrawal, and

(iii)  that it would issue letters to the 168 members of the union who had failed to respond to the union’s solicitors’ enquiries, warning them that the application on their behalf would be struck out for want of prosecution within 14 days of the tribunal’s decision “in the absence of cause being shown to the contrary”.

9.   A further ground advanced by the Trust for the striking out of the application made on behalf of the union’s members on the ground that it amounted to an abuse of the court’s process was dismissed (“the abuse of process issue”).   The Trust is appealing against the tribunal’s findings on the ratification and abuse of process issues, but in case the tribunal’s finding on the ratification issue is set aside, the 336 members of the union who had subsequently given their approval for the action which the union had taken in their names are seeking to uphold the tribunal’s decision that their application should not be struck out on the basis that the tribunal’s finding on the agency issue was wrong.

10.   The position relating to the 168 members of the union who had failed to respond to the union’s solicitors’ enquiries is as follows.   In the 14 days after the tribunal’s decision, none of them responded to the warning letter from the tribunal.   The tribunal extended their time for doing so by 21 days.   During that time, 23 of the 168 members of the union informed the tribunal that they objected to their claims being struck out.   Their representations will be considered at a further hearing in the employment tribunal, which has been stayed pending the determination of this appeal.   In these circumstances, it is not contended on behalf of the other 145 members of the union that the application on their behalf should not now be struck out for want of prosecution.   Nor is it contended on behalf of the Trust that the Employment Appeal Tribunal should consider the cases of the 23 members of the union, which will be determined by the employment tribunal.   

The purported ratification of the originating application

11.   The argument advanced on behalf of the Trust by Miss Adrienne Morgan is that

(a)  the originating application had been presented without the authority of the union’s members (apart from the 102 members of the union who had completed originating applications before 5 April 2001), 

(b)  by the time when they purported to ratify the presentation of the originating application, the time limit for presenting the originating application had expired,

(c)  because the time limit for presenting the originating application had by then expired, the purported ratification of the presentation of the originating application was of no effect.

12.   There were different time limits for each of the three claims being brought by the members of the union.   First, the time limit for presenting a claim for unfair dismissal is to be found in section 111(2) of the 1996 Act, which provides (so far as is material):

“…..an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal– 

(a) before the end of the period of three months beginning with the effective date of termination, or  

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

Leaving aside the effect of what has been described as the “escape clause” in section 111(2)(b), the time limit for bringing claims for unfair dismissal in this case expired on 5 April 2001.   Secondly, the time limit for submitting a reference to a tribunal for a determination of what the union’s members’ terms and conditions of employment were is to be found in section 11(4) of the 1996 Act, which provides:

“An employment tribunal shall not consider a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring a reference to be made was made – 

(a)  before the end of the period of three months beginning with the date on which the employment ceased, or

(b)  within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months.”

Accordingly, the time limit for a reference to the tribunal for a declaration has not expired because the union’s members are still employed in the employment to which the reference relates.   Thirdly, the time limit for presenting a complaint to a tribunal relating to a failure to inform or consult under the 1981 Regulations is to be found in reg. 11(8) of the 1981 Regulations, which provides (so far as is material):

“An employment tribunal shall not consider a complaint under paragraph (1) …..above unless it is presented to the tribunal before the end of the period of three months beginning with– 

(a)  the date on which the relevant transfer is completed…..

or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.”

Leaving aside the effect of the escape clause at the end of reg. 11(8), the time limit for presenting a complaint of this kind expired on 30 June 2001.   There is no finding by the employment tribunal as to how many of the 336 employees who had given their approval by 24 October 2001 for the action which the union had taken in their names had given that approval by 30 June 2001.   

13.   The doctrine of ratification is well recognised in English law.   In Smith v. Henniker-Major & Co. [2002] 3 WLR 1848, Robert Walker L.J. (as he then was) said at [56]:

“…..ratification is an election by a person to adopt the transaction purportedly entered into in his name or on his behalf, but not in fact authorised by him at the time.   Effective ratification is ‘equivalent to an antecedent authority’…..and so it has retrospective effect.”

The doctrine applies whether the person who did the act was an agent exceeding his authority or a person having no authority to do the act at all: see Bowstead & Reynolds on Agency, 17th ed., para. 2-047.   Moreover, every act which is capable of being done by an agent (except an act which is in its inception void) is capable of ratification by the person in whose name and on whose behalf it was purportedly done: see Bowstead & Reynolds, para. 2-052.   

14.   The issue in the present case concerns the exceptions to the application of the doctrine of ratification.   The relevant principle is stated in Bowstead & Reynolds, para. 2-087, under the heading “Limits on Ratification” as follows:

“Ratification is not effective where to permit it would unfairly prejudice a third party, and in particular – 

(1) where it is essential to the validity of an act that it should be done within a certain time, the act cannot be ratified after the expiration of that time, to the prejudice of any third party;

(2) the ratification of a contract can only be relied on by the principal if effected within a time after the act ratified was done which is reasonable in all the circumstances.”

Thus, the general rule is that where a third party would be unfairly prejudiced by the ratification of a previously unauthorised act, the ratification will not be effective, and what Bowstead & Reynolds describe as rules (1) and (2) are simply two specific instances where the general rule has been applied.   Miss Morgan’s argument is that the purported ratification of the unauthorised presentation of an originating application to an employment tribunal after the expiration of the time limit for its presentation comes within rule (1).   

15.   The purported ratification of the unauthorised issue of originating process after the expiration of the time limit for its issue was considered by the Court of Appeal in Presentaciones Musicales SA v. Secunda [1994] Ch 271.   In that case solicitors issued proceedings on behalf of a company registered in Panama, in the mistaken belief that they had authority to do so.   The writ, which was issued in April 1988, claimed relief for breaches of an agency agreement and successive infringements of copyright dating back to 1981.   In fact the plaintiff had been dissolved and liquidators had been appointed in 1987.   In March 1991 the defendants applied to have the proceedings stayed or struck out as an abuse of the court’s process.   In May 1991 the liquidators purported to ratify the issue of the proceedings.   The defendants argued that the liquidators were not entitled to ratify the issue of the proceedings in 1991 because a three year limitation period within which they had authority to  commence such an action in the name of the plaintiff under Panamanian law had by then expired, and if effect was given to the purported ratification by the liquidators, the defendants would be unfairly prejudiced by being deprived of the benefit of their right not to face stale claims under the Limitation Act 1980 and under the copyright legislation.   The Court of Appeal rejected these arguments.   It held that, since a writ issued without authority was not a nullity, it could be ratified after the expiration of the applicable limitation periods.   

16.   The first judgment was given by Dillon L.J.    Nolan L.J. (as he then was) agreed with Dillon L.J.’s conclusion and his reasons for that conclusion.   Dillon L.J.’s judgment therefore represents the views of the majority of the court.   His reasoning was as follows:

“It is well recognised law that where a solicitor starts proceedings in the name of a plaintiff…..without authority, the plaintiff may ratify the act of the solicitor and adopt the proceedings.   In that event, …..the defect in the proceedings as originally constituted is cured…..The reason is that by English law ratification relates back to the unauthorised act of the agent which is ratified…..There is, however, a qualification to this rule of English law as to the effect of ratification for which the leading authority is Bird v. Brown (1850) 4 Exch. 786…..What is said, at p.799, is that the doctrine of ratification ‘must be taken with the qualification, that the act of ratification must be taken at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies.’   The point taken…..for the first defendant is that…..there can be no ratification of an action started without authority if at the time of the purported ratification the cause or causes of action on which the unauthorised action was founded would have been wholly or partly statute barred, with the result that the plaintiff could not effectively have issued a fresh writ, raising the same claims, at the date of the purported ratification.   It is therefore necessary to look at the basis on which the qualification in Bird v. Brown is founded.”

Having considered both Bird v Brown and other early cases, Dillon L.J. continued:

“The ratio of all these cases seems to be that, if a time is fixed for doing an act, whether by statute or by agreement, the doctrine of ratification cannot be allowed to apply if it would have the effect of extending that time.”

But Dillon L.J. noted the subsequent case of Bolton Partners v. Lambert (1889) 41 Ch.D. 295.   The facts of that case were that an offer was made by the defendant to an agent of the plaintiff to purchase a property of the plaintiff.   The agent purported to accept the offer on behalf of the plaintiff, but in fact he had no authority to do so.   Within a reasonable time the plaintiff ratified the acceptance, but in the meantime the defendant had withdrawn the offer.  It was held that the ratification was effective notwithstanding the withdrawal of the offer.   Dillon L.J. distinguished Bolton Partners from Bird v. Brown on the basis that in the Bird v. Brown line of cases, in which ratification after the expiry of a time limit was held to be too late, the act done by the self-appointed agent, before the expiry of the time limit, had no effect in law unless ratified.   By contrast, in Bolton Partners, the acceptance by the agent without authority of the defendant’s offer to purchase the plaintiff’s property was not without legal effect.   It had prevented the defendant from withdrawing his offer.   Accordingly, Dillon L.J. concluded that the principle in the Bird v. Brown line of cases had no application where the act done by the self-appointed agent, even though done without authority, had not been without legal effect.   

17.   So the question for Dillon L.J. was whether a writ issued without authority was without legal effect.   On that issue, he said:

“Where a writ is issued without authority, the cases show that the writ is not a nullity.   For the nominal plaintiff to adopt the writ, or ratify its issue, does not require any application to the court.   Accordingly, …..the plaintiff, in the simple example of an action raising a single cause of action which has been begun by solicitors without authority, must be entitled to adopt the action notwithstanding the expiration of the limitation period applicable to that cause of action.”

18.   If an action proceeding in the High Court which has been commenced by the issue of a claim form without the authority of the claimant can be ratified by the claimant notwithstanding the expiration of the limitation period applicable to the claimant’s cause of action at the time of ratification, why should that principle not apply to a case proceeding in the employment tribunal which has been commenced by the presentation of an originating application?   Miss Morgan’s ingenious answer is based on what she claims is an important difference between the limitation periods applicable to the union’s members’ claims in the employment tribunal and the limitation periods in actions founded on breach of contract or tort.   Generally speaking, the effect of the expiration of the limitation periods in claims for breach of contract or tort is that the claimant is barred from pursuing his remedy, though his right to commence proceedings is not extinguished.   Thus, the proceedings can continue despite the expiration of the limitation period when the proceedings were commenced, if the defendant elects not to take any point on limitation.   Miss Morgan argues that that is different from a complaint of unfair dismissal.   She contends that, as a result of the language of section 111(2) of the 1996 Act and its statutory predecessors, it is not open to a respondent to a complaint of unfair dismissal to waive the time limit if it wants to.   The time limit is said to be jurisdictional, not procedural, so that the would-be applicant is not merely barred from pursuing his remedy, but his right to present an originating application complaining of unfair dismissal has been extinguished.   That is said to be the effect of Westward Circuits Ltd. v. Read [1973] ICR 301, Rogers v. Bodfari (Transport) Ltd. [1973] ICR 325 and Dedman v. British Building & Engineering Appliances Ltd. [1974] ICR 53.   

19.   Miss Melanie Tether for the union and its members sought to answer that argument in two ways.   First, she argued that there is no difference between the effect of the expiration of the limitation period for presenting a complaint of unfair dismissal, and the effect of the expiration of the limitation periods for bringing claims founded on breach of contract or tort.   The effect of the expiration of both sets of limitation periods is to bar the remedy, not to extinguish the right.   In short, she contends that Westward Circuits and Bodfari (Transport) (which were decided by the National Industrial Relations Court) were wrongly decided, and should not be followed.   The same is true of Dedman, but since Dedman was decided by the Court of Appeal, it must be followed by the Employment Appeal Tribunal unless the exception identified in R (on the application of Kadhim) v. Brent London Borough Council Housing Benefit Review Board [2001] 2 WLR 1674 applies, namely that the Court of Appeal in Dedman had simply assumed that the decisions in Westward Circuits and Bodfari (Transport) had been correct, and the issue had not been the subject of argument before, or consideration by, the court in Dedman.   If the Employment Appeal Tribunal is not bound by Dedman, the Employment Appeal Tribunal should follow the reasoning of the National Industrial Relations Court in Grimes v. Sutton London Borough Council [1973] ICR 240, which itself relied on the reasoning of the House of Lords on not dissimilar statutory language in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] AC 850.   Secondly, Miss Tether argued that even if there was a difference between the effect of the expiration of the limitation period for presenting a complaint of unfair dismissal and the effect of the expiration of the limitation periods for claims founded on breach of contract and tort, it was not a difference which impacted on the reasoning of the majority in Presentaciones Musicales.

20.   We agree with the latter submission.   If the reason why a claim form in the High Court is not a nullity when it is issued without authority is because its subsequent ratification does not require any application to the court, an originating application presented to an employment tribunal is not a nullity even when it is presented without authority because its subsequent ratification also does not require any application to be made to the tribunal.   The fact that the originating application was presented without authority did not mean that it was without legal effect at the time when it was presented.   If it had legal effect at the time it was presented, even though it had been presented without authority, the fact that the expiration of the limitation period subsequently extinguished the right to present the originating application rather than barred the applicant’s right to a remedy makes no difference, since Dillon L.J.’s judgment focussed on whether the originating process had legal effect at the time when it is issued.   

21.   We have not overlooked the judgment of Roch L.J., the third member of the court in Presentaciones Musicales.   In an important passage in his judgment, he said at pp. 285-286:

“…..where the putative principal seeks to ratify not a contract but an act done by an assumed agent – in this case the issuing of the writ – the first question is whether that act still existed at the moment of the purported ratification…..In the present case the writ came into existence on 19 April 1988 and remains in existence unless and until it is struck out as being an abuse of process.   It was still in existence in May 1991 when the liquidators purported to ratify it.   I would conclude that ratification in this case has been effected, unless another exception established by the case law for the general principle applies.   

The other exception which has to be considered in the present case is that indicated by Cotton L.J. [in the Bolton Partners case] in the passage cited by the words ‘an estate once vested cannot be divested.’   I would suggest that that exception ought to be stated in these terms: that the putative principal will not be allowed to ratify the acts of his assumed agent, if such ratification will affect adversely rights of property in either real or personal property including intellectual property, which have arisen in favour of the third party or others claiming through him since the unauthorised act of the assumed agent.   The expiry of the limitation period in the present case does not create any such right in the defendants; if applicable it would merely bar the plaintiff company’s remedies.   I would not extend this exception to cases such as the present where a defendant would receive a windfall defence in a case where the vice against which the Limitation Acts are designed to protect defendants, namely the bringing of claims at a time so far after the occurrence of the cause of action that a defendant is put at a disadvantage in defending the claim, does not exist.”   (Emphasis supplied)

We make two comments on that passage.   First, Roch L.J. was not implying, in the words we have highlighted, that his conclusion would have been otherwise if the effect of the expiration of the limitation period had been to extinguish the plaintiff’s right to bring the claim.   That is because that would no more create rights for the defendants than if the effect of the expiration of the limitation period had simply been the barring of the plaintiff’s right to a remedy.   Whatever the effect of the expiration of the limitation period, defendants can always prevent the action from proceeding by pleading the Limitation Acts if only the remedy is barred, or by asserting that the claim is statute-barred if the right to bring the claim is extinguished.   

22.   Secondly, the last sentence in the passage of Roch L.J.’s judgment which we have cited highlights the importance of balancing the prejudice which a defendant would suffer if the claim was allowed to proceed against the mischief which limitation periods are intended to prevent.   In the present case, the prejudice which the Trust will suffer if the presentation of the originating application is treated as having been filed by members of the union who had not authorised its presentation by the expiration of the limitation period is that the Trust will face claims from a greater number of individual employees.   That will not affect how the Trust presents its case on (a) the need to introduce new shift patterns, (b) whether the Authority was contractually entitled to change the shift patterns unilaterally, and (c) whether the introduction of the new shift patterns was procedurally fair.   In other words, this is not a case in which the Trust is facing unusually stale claims as a result of the ratification of the presentation of the originating application after the expiration of the time limit.   In no meaningful sense can the Trust be said to be unfairly prejudiced if it faces claims from a greater number of employees.   It will simply have been denied the windfall of being able to rely upon an absence of authority which did not last for long.   We do not comment on what the position would have been if a very much longer period had elapsed between the expiration of the time limit and the purported ratification of the presentation of the originating application, but for the reasons we have given, we do not think that the Trust would be unfairly prejudiced if the originating application were allowed to be litigated in the names of the 336 union members who by 24 October 2001 had purported to ratify what the union had done in their names.   

23.   Two other considerations have informed our thinking.   First, as the tribunal pointed out, it is not uncommon for solicitors, trades union and other advisers to present originating applications on behalf of applicants.   That being so, Parliament cannot have intended that the rules governing the issue of proceedings in the employment tribunal should be more rigorous than those which regulate the commencement of proceedings in the ordinary courts.   Secondly, it is true that the limitation periods applicable to proceedings in the employment tribunal are short in comparison with those applicable to other types of claim.   But the fact that a time limit is extremely short is not a good reason for suggesting that the ordinary rules relating to ratification should not apply.   On the contrary, the relative shortness of the time limit, and the commensurately greater difficulty of complying with it, reinforces the case for saying that the doctrine of ratification should apply no more harshly to proceedings in the employment tribunal than to proceedings in the ordinary courts.

24.   We announced our conclusion on this issue in the course of the hearing, and that made it unnecessary for us to hear further argument on (a) the true effect of the expiration of the time limit for presenting a complaint of unfair dismissal, or (b) the agency issue.

Abuse of process

25.   The claim that the initiation of these proceedings by the union amounted to an abuse of the tribunal’s process was based on two grounds.   First, the union’s action in presenting the originating application without obtaining the authority to do so from a majority of its members in whose names the proceedings were commenced was said to have been an attempt to circumvent the time limit for the presentation of individual claims to the tribunal.   

26.   This argument has to be seen in the light of the findings of primary fact which the tribunal made.   The tribunal found that there were “particular factors” in the case which had prevented the union from getting the authority of all of its members before presenting the originating application in their names.   It was argued that the tribunal did not identify what those factors were, but a fair reading of the tribunal’s extended reasons shows that two factors informed the tribunal’s thinking.   First, it had been difficult for the union to contact all of its members because the records which the union had containing information on members were incomplete and out of date.   Secondly, there had been insufficient time for the union to obtain authority from all of its members because the main energies of the union and its solicitors had been devoted to the union’s negotiations with the Trust, and to the preparations for the holding of the ballot and for any subsequent industrial action which the ballot endorsed.   

27.   We do not think that there is any basis for a successful challenge to the findings of primary fact which the tribunal made.   Upon those findings of fact, it was undoubtedly open to the tribunal to find that the form in which the proceedings were initiated did not amount to an illegitimate attempt to circumvent the time limit for the presentation of individual claims to the tribunal.   That could not be said at all of the 102 members of the union who had completed originating applications themselves before 5 April 2001.   And as for the others, no abuse of process would arise if the only claims which would be allowed to proceed were those of individual members who subsequently ratified what the union had done in their names.   That followed from the tribunal’s finding, with which we have agreed, that the purported ratification after the expiration of the time limit of what the union had done in their names was effective.   

28.   The second ground on which the Trust argued that the initiation of these proceedings by the union amounted to an abuse of the tribunal’s process was that the presentation of the originating application followed shortly after the union’s decision not to proceed with a ballot on whether industrial action should be taken.   Since industrial action was therefore not going to advance the union’s attempts to persuade the Trust to withdraw the new shift patterns, the presentation of the originating application was an industrial tool intended to put pressure on the Trust in furtherance of the dispute without being sanctioned by a large number of the workforce.   That amounted to the use of the tribunal’s process for a purpose significantly different from its ordinary and proper use.   

29.   In this connection, the tribunal made a critical finding about why the originating application had been presented.   It acknowledged that in his evidence the union’s solicitor had “candidly accepted” that there had been “the hope” that commencing proceedings “might influence a resolution of the dispute”.   However, the tribunal found that that was only a “peripheral”, and not the “main”, object.   The tribunal must therefore be regarded as having found that the union’s principal purpose in commencing the proceedings was to ensure that the rights which its members individually had to present claims to the tribunal would be preserved.   As the tribunal found, blank originating application forms had been made available by the union to its members, and the union’s solicitors had been concerned that the union could be criticised by its members if their individual claims had been allowed to lapse.   

30.   Again, we do not think that there is any basis for a successful challenge to the findings of primary fact which the tribunal made.   Upon those findings of fact, it was undoubtedly open to the tribunal to find, in the light of the union’s dominant purpose for commencing the proceedings, that the tribunal’s process was not being abused.   The fact that the union hoped that the issue of proceedings might facilitate a resolution of the dispute did not undermine the legitimacy of the proceedings.   It certainly did not “taint the whole proceedings”, which was how Miss Morgan described the effect of it.   If a peripheral hope that a possible by-product of the issue of proceedings might be the resolution of the dispute could amount to an abuse of process, very many cases, whether proceeding in the tribunals or in the ordinary courts, would likewise be an abuse of process.   Proceedings are often issued, albeit with the ultimate intention of obtaining the relief claimed if a settlement is not achieved, in the hope that resorting to litigation will force a compromise.   

Conclusion

31.   For these reasons, we concluded that the tribunal’s findings on both the ratification issue and the abuse of process issue could not be faulted, and that the appeal had therefore to be dismissed.