Appeal No. UKEAT/0219/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 August 2006

Before
HIS HONOUR JUDGE ANSELL
(SITTING ALONE)

MR D BEAUMONT	APPELLANT

AMICUS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr D Beaumont
(The Appellant in Person)	
For the Respondent	Mr P Edwards
(of Counsel)
AMICUS Legal Services
General Secretary
35 King Street
Covent Garden
WC2E 8JG	

Summary
Trade Union Membership
Solicitor’s letter before action sent on behalf of a Union demanding costs and undertaking was not a “determination” under Section 64 Trade Union and Labour Relations Act.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal from the decision of a Chairman Mr Buckley, sitting alone at London (Central) on 12 January 2006, who in a decision sent to the parties on 31 January, struck-out the claim brought under section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992, in which the Claimant had alleged that he had been unjustifiably disciplined by the Respondents.  He claimed that the unjustifiable discipline related to a request to provide an undertaking and to reimburse the Respondents’ in respect of their legal costs in respect of threatened proceedings concerning an alleged trade mark infringement of the union named Amicus, in connection with a website “www.amicus.cc”, which allegedly was controlled by the Claimant.  Leave for this hearing was given by HHJ Burke QC on the 7 April 2006.  

2.	The background facts are that the Claimant admitted involvement in the production of a website www.amicus.cc.  The site had made use of the name amicus and also a logo which appeared to closely resemble the union logo.  A letter before action was sent to the Claimant on 15 September 2005 which set out the alleged trademark breaches and also made reference to the fact that much of the material on the website was derogatory of “our clients and its offices”.  I make mention of that because as will be seen below the relevant statutory provisions require that there is some prohibited conduct which has given rise to the alleged discipline.  That conduct can consist of complaints about the activities of union officials and certainly for the purposes of the strike-out hearing, it appears to have been conceded that whilst the letter sent by the union solicitors was mainly concerned with the alleged trademark infringement, there was also a complaint in the letter in relation to the complaints by Mr Beaumont concerning the union officials.  

3.	The letter required him to give undertakings as set out in a form attached to the letter within a period of 21 days.  The draft undertakings are set out on page 69 of the bundle.  There were 5 requests; firstly to cease using the trademark with some ancillary orders; secondly to transfer the domain name; thirdly delivery up of materials; fourthly declarations that the undertakings had been complied with; fifthly reimbursement of legal fees.  That demand was later repeated in a letter of 29 September; there was a slight difference in the wording of that letter in that it was said that “our clients request that you now provide and comply with the undertakings”.  Both letters had been sent by Messrs Osborne Clark, the unions solicitors, presumably on instructions received from the relevant union officers or officials.  Undertakings 1,3 and 4 were certainly given in part by Mr Beaumont although there was an issue that he sought to raise before me as to whether or not he did offer to comply with all of those undertakings.  Certainly it is recorded within the Chairman’s decision at paragraph 3 (iv), that he had consented to give those undertakings and he no longer pursued the argument that he was thereby unjustifiably disciplined.  Before me today it was suggested by the union that even if he had consented to give the undertakings it was still open to him to allege that he was still suffering as a result of the unjustifiable discipline, but he has not sought to do that.  

4.	The relevant law is set out in section 64 and 65 of the Trade Union and Labour Relations (Consolidation) Act 1992.  Section 64 reads as follows:- 

“64	Right not to be unjustifiably disciplined

(1)	An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.
(2)	For this purpose an individual is “disciplined” by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that--
(a)	he should be expelled from the union or a branch or section of the union,
(b)	he should pay a sum to the union, to a branch or section of the union or to any other person;
(c)	sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose,
(d)	he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union,
(e)	another trade union, or a branch or section of it, should be encouraged or advised not to accept him as a member, or
(f)	he should be subjected to some other detriment;
and whether an individual is “unjustifiably disciplined” shall be determined in accordance with section 65.
(3)	Where a determination made in infringement of an individual’s right under this section requires the payment of a sum or the performance of an obligation, no person is entitled in any proceedings to rely on that determination for the purpose of recovering the sum or enforcing the obligation.
(4)	Subject to that, the remedies for infringement of the right conferred by this section are as provided by sections 66 and 67, and not otherwise.
(5)	The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this section; [and, subject to section 66(4), nothing] in this section or sections 65 to 67 affects any remedy for infringement of any such right.”

And section 65 provides 

“65	Meaning of “unjustifiably disciplined”
(1)	An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is--
	(a)	conduct to which this section applies, or
(b)	something which is believed by the union to amount to such conduct; but subject to subsection (6) (cases of bad faith in relation to assertion of wrongdoing).
(2)	This section applies to conduct which consists in--
(a)	failing to participate in or support a strike or other industrial action (whether by members of the union or by others), or indicating opposition to or a lack of support for such action;
(b)	failing to contravene, for a purpose connected with such a strike or other industrial action, a requirement imposed on him by or under a contract of employment;
(c)	asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any enactment (whenever passed) or any rule of law.”

5.	Therefore as can be seen from section 65(2)(c) the conduct giving rise to the discipline can consist of asserting that the union, any official or representative or trustee of its properties has contravened or is proposing to contravene a requirement which is or is thought to be imposed by or under rules of the union or any other agreement or by or under any enactment or any rule or law.  As I have indicated above, whilst the solicitors’ letter may have been certainly in part to do with the trademark infringement it was also closely connected with the comments that he had made actually on the website criticising union officials and as I indicate again for the purposes of this appeal it is assumed that the letter related to conduct covered by section 65.  

6.	I certainly read the general purpose of this section as an attempt to prevent union officers or officials either using or misusing union rules and powers to discipline members of the union in various ways for example by expulsion, by fine, by removing their benefits, as a response to the individual’s complaint that a union official had acted to breach of the rules of the union and thus sense the discipline which can give rise to a finding of unjustifiable discipline would appear to relate to the powers of the particular union officials concerned under the union rules, namely whether they using the rules properly or misusing those powers.  The only authority that has been found in this area of law is a case from 1990 under predecessor legislation, namely section 3 of the Employment Act 1988 namely Transport and General Workers Union v Webber [1990] ICR 711 a decision of this court presided over by Mr Justice Wood.  

7.	The facts of the case were that the applicant was a member of a branch of TGWU and prior to July 1987 he had an altercation with the secretary of his branch as a result of which proceedings were instituted.  The branch then began action in an attempt suspend and expel the individual from the union.  That required a complicated procedure going right up to the level of the union’s executive council who would decide whether or not to implement a recommendation that had been made by the regional committee to expel the member from the union.  Prior to that final decision being taken, the individual had been refused permission by branch officials to attend a branch meeting on 25 May 1989, although that had been contrary to a letter that he had received earlier when he was told that until the final decision was taken his rights would not be suspended.  The individual concerned brought proceedings under the predecessor section, section 3 of the Employment Act 1988complaining about the regional committee’s decision to expel.  The proceedings were brought before the executive council had taken the final decision to expel.  The main issue in the case was whether or not there had been a “determination to expel” under the provisions of the then legislation or whether the union member had “jumped the gun” and taken proceedings to early.  This court also indicated that it was a possibility that his expulsion from the branch meeting breached the Act, but because that allegation had not been raised in the original pleadings, that issue was remitted to the industrial Tribunal for the union to call further evidence.  

8.	Dealing however with the general issue as to whether or not a determination had been made, the Sir Justice Wood said this at page 715 F:-

	“Approaching the question of interpretation with these policy considerations in mind, it would seem that before a decision can constitute a “determination to expel” within the provisions of section 3(5)(a), it must be one which achieves a disposal of that issue; one which does not contain within it a condition subsequent.  A decision that an expulsion be effected upon a date in the future would not render it any the less an effective determination, but the facts in the present case indicate that there remained an uncertainty whether or not the applicant was to be expelled.  It was not an effective determination in the sense which we have expressed above.
Upon a reading of each of the subsections it also seems to us that the phrase “should be” is to be understood as “is to be” not as “ought to be.”
In paragraph 23 of their decision the industrial tribunal say:
“In the Act of 1988, the words used are ‘should be expelled’ and that seems to us to be wide enough to cover the situation which exists in this case, namely there had been a ‘determination’ that the recommendation of the branch was upheld and that the recommendation was to go through to the general executive council that it should be put into operation.  Consequently we find in favour of the applicant in respect of that matter.”
Mr Elias has persuaded us to take the contrary view and the union therefore succeeds on this point.”

9.	In the present case the Chairman clearly followed the guidance given in the Webber case and accepted the arguments put forward by Mr Edwards on behalf of the union, who has also appeared before me, that no final determination was made by any official of the union that the Claimant should pay a sum to the union or should be subjected to some other detriment, such as an undertaking, because the union had not made any determination that disposed of the particular issue without any condition subsequent.  He went on to say this at paragraph 3 (vii):-

“The making of a request for undertakings did not constitute a “determination” in the sense that there was a final disposal of any issue.  There was a condition subsequent required namely the Claimant consenting to give those undertakings.  In the absence of consent to any undertaking, the issue was open.  It had not been determined.  In order to seek an order for costs the Respondent would need to take court proceedings and succeed in an application for costs.  Similarly with regard to the transfer of the website would have to satisfy the Court that there entitled to such injunctive relief.”

10.	Before me the Appellant has renewed his argument that in this case the union’s actions in causing a letter to be sent requiring costs and the undertaking, were sufficient to amount to a determination.  Mr Beaumont submits that the sending of that letter by implication means that the union officials had instructed their solicitors to write the letter, that they have authorised the sending of that letter and therefore as far as the union is concerned a determination has been made to seek those costs and to seek that undertaking.  It required no further action on the part of the union; it required no further confirmation as in the Webber case.  He argued that the union had done all it has required to do and even if it resulted in the union member responding that he was not prepared to pay costs or give the undertaking, as happened in this case, the actual request namely the demand for payment and the demand for the undertaking was sufficient; the union had determined that action had to be taken.  Mr Beaumont argued further that the issue taken by the chairman and taken up today by the union, namely that the request was conditional upon either agreeing to give the undertaking or to pay costs, or even to receive an invoice from the union solicitors, did not make the detriment any less; he argued that the detriment, the harm caused, was in the demand and the request to give the undertakings.  Indeed he argued that if he had consented to these requests, the union could have then argued that his consents clearly indicated that the discipline was not unjustifiable.  I cannot argue with that argument since even if he chose to give the undertakings there was still nothing to prevent Mr Beaumont arguing that they were given in breach of section 64.  

11.	On behalf of the union, Mr Edwards argued succinctly and invited me to consider section 64 using the wording suggested by Mr Justice Wood, for example in subsection 2(a) where it suggested discipline can consist of an individual being requested by a union official, that he “should be expelled from the union”, substituting the words “is to be expelled from the union”.  Similarly in 2(b) instead of “he should pay a sum”, “he is to pay a sum”, and in 2(f) instead of the words “he should be subjected to some other detriment”, “he is to be subjected to some other detriment”.  In other words he argued that for there to be a determination there has to be a request made by the union which is effectively within their powers and one which is not conditional. Further it must carry with it the impression that there is immediacy to be attached to it.  This is why I suggested at the outset that the main scope of the section is very much concerned with the use or misuse of union disciplinary powers, purportedly exercised by union officials, exercising their powers as officials of the union.  The difference in this case, Mr Edwards submitted, was that the letter sent by the solicitors containing the request for costs and undertaking, fell within the category of ‘ought to’ rather than ‘is’.  There was no immediate demand or indeed power behind the request, it was no more than a request to Mr Beaumont which he could either accept or reject.  He did not loose that discretion until such time as either he agreed to give the undertaking or pay the costs, or refused and the union then, if they thought fit, could commence proceedings against him.  It is only at that stage, Mr Edwards argued, that the request or discretion inherent in the union’s letter took on more certainty and moved to a stage where it could be said that the union, in exercising their powers, had made a definite demand upon him in respect of which he no longer has any discretion.  
12.	It is a narrow dividing line; in this case Mr Edwards suggested that the dividing line was between a letter before action requesting that Mr Beaumont took certain action and the commencement of proceedings, at which stage he lost his discretion in that he was required to take part in the litigation and to abide by the result of that litigation.  I agree with these submissions on behalf of the union, which clearly found favour with the Chairman below, namely, that there is clear distinction between a union official, for example, requesting payment of a monetary sum for an alleged breach of union procedure or rules as opposed to instructing solicitors to demand payment of costs within litigation, even if that litigation may in part have been prompted by an attempt to retaliate because the union member had made complaints about union officials.  I am satisfied that there was not a valid determination since the letter before action did contain within it a condition subsequent, namely both the agreement of Mr Beaumont to the request being made, and in respect of the costs, a note of the amount involved.  For these reasons I am not prepared to interfere with the decision made below.