Appeal No.	 EAT/289/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 2001
	and
	23 May 2002
Judgment delivered on 18 September 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR P DAWSON OBE
MR B V FITZGERALD MBE

THE TRANSPORT AND TRADE UNION WORKERS UNION	APPELLANT

MR N G NICOLAOU AND 5 OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TOM LINDEN
(of Counsel)
Instructed By:
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London
WC1N 3HA	
For the Respondents	MR S JUSS
(of Counsel)
Instructed By:
Mr R C Morris
Messrs Hanne & Co
Solicitors
St John’s Chambers
1C St John’s Hill
London SW11 1TN	

MR JUSTICE LINDSAY (PRESIDENT):
1.	The Tribunal at London South, after hearing no evidence but basing itself wholly on its understanding of a concession then made by the lay representative of the Transport & General Workers’ Union, ruled that the Union had excluded the Applicants from membership of the Union in breach of section 174 of the Trade Union & Labour Relations (Consolidation) Act 1992.   The Union, now appearing by Mr Linden, appeals.   The Applicants, now appearing by Mr Juss, resist the appeal.
2.	On 24th November 1998 one of the Applicants, Mr Nicolaou, wrote to Mr Fergus Whitty, the Union’s director of Legal Services.   He raised a number of questions including some as to some litigation against the Union then proceeding in the County Court.   He did not in terms say that he was speaking for others as well as for himself, nor that those others and he were members of the Union.   The context, though, may have indicated that to a reader aware of all the surrounding circumstances.
3.	On 17th December 1998 Mr Whitty answered.   He appears to write only to Mr Nicolaou.   His letter, after acknowledging Mr Nicolaou’s letter of the 24th November, continues that he:-
“note[s] that you are not a member of the Union.”
He concluded:-
“I cannot become further involved in writing to you on a matter which is before the Court”
a reference, presumably, to the County Court proceedings to which Mr Nicolaou’s letter had referred.
4.	On 16th February 1999 Mr Nicolaou presented an IT1 claiming (and claiming only) a breach of his right under section 174 of the Trade Union & Labour Relations (Consolidation) Act 1992 not to be excluded or expelled from the Union.   He identified Mr Daniel Ibekwe as his representative.   He complained that instead of his letter of 24th November being answered, he having been a member of the Union for over 10 years:-
“I was indignantly notified that I was no longer a member of the Union.   To the best of my knowledge or awareness, there existed no justification or excuse to warrant such act/action ....”
He said he had made Union contributions by way of deduction by his employer from his wages;  he was a paid-up member who had neither terminated his membership nor caused it to lapse.   The Union’s letter of 17th December had been, he claimed, a flagrant breach of his rights under section 174.   He therefore sought a declaration against the Union under section 176.   Although we have no papers separately referring to their cases, we shall assume that the cases of the 5 other applicants below, respondents to the appeal, are such that we can take Mr Nicolaou’s case as typical of all.

5.	Section 174 begins:-
“(1)	An individual shall not be excluded or expelled from a trade union unless the exclusion or explanation is permitted by this section.”
6.	Neither “exclusion” nor “expulsion” is defined in the 1992 Act but both received some attention in NACODS -v- Gluchowski [1996] IRLR 252 EAT.   The judgment of the EAT delivered by Maurice Kay J. at para 29 concluded that “exclusion” referred to a refusal to admit into membership of a Union.   We respectfully agree and see section 177 (2) (a) as buttressing that interpretation.   The NACODS case also shews there is reason to distinguish between exclusion or expulsion from the membership of a Union on the one hand and the failure or refusal by a Union to supply its full services to a member on the other.   The case also raises doubts as to whether section 174 covers “constructive” expulsion from a Union but (as is also the case in the matter before us) it did not need to go further into that - see  para 36 - as no repudiatory breach by the Union concerned was both claimed and supported by evidence.   As is the case before us, in NACODS there had been no resolution of expulsion and no notification of expulsion.   NACODS also emphasises that the rights conferred by section 174 are in addition to and not in substitution for whatever other rights the individual might have - see para 25 and see section 177 (5).
7.	On 24th February 1999 the Union put in its IT3 which referred to a letter of that date from Mr Whitty to the Employment Tribunal which, referring to Mr Nicolaou’s case and those 5 others, said:-
“There has been a misunderstanding in these cases and the respondent apologises to the applicants for this misunderstanding.   The respondent had been notified by Union solicitors, Pattinson & Brewer, on 14th December 1998 that information had been received that the applicants had lodged claims against the employer alleging union subscriptions were unlawfully deducted from their wages.   In the circumstances it was concluded that the applicants no longer wished to be members of the Union.
	The respondent notes that the applicants have continued to pay contributions to the Union and are in compliance.   The respondent withdraws any suggestion that the applicants are not members of the Union.   There is no question of expulsion from the Union as this has never occurred.   The respondent confirms that the applicants have never been excluded or expelled from the Union and that membership of the Union has continued.
	It is therefore submitted that in the circumstances the Employment Tribunal should consider whether these claims against the Union should continue.
	We await the decision of the Chairman of the Tribunals.”
8.	We do not have an answer from any Chairman amongst our papers and, so far from some discontinuance of the cases being ruled upon, the cases were fixed for a hearing over 2 days in August 1999.
9.	The hearing began at the Tribunal at London (South) on 4th August 1999.   Mr Ibekwe appeared for the applicants, listed as “Nicolaou and others”.   The Union appeared by Mr Peter Smith.   He had obtained a law degree from Staffordshire Polytechnic in 1979 but is neither a Solicitor nor a barrister.   The Chairman, Mrs J.A.J.C. Gleeson began by calling in the representatives only.   Mrs Gleeson was sitting with Ms B.C. Leverton and Mr J. Ellis.
10.	There are 3 versions of what then occurred.   They come from Mr Ibekwe, Mr Smith, and, by way of Chairman’s comments, from Mrs Gleeson.   The Chairman’s Notes themselves, unsurprisingly as no evidence was ever given, amount only to some 4 or 5 lines but Mrs Gleeson’s comments sent to the Employment Appeal Tribunal, some 3 pages or so long, explain how it was that, to use her phrase, the hearing “barely got off the ground”.   It would seem that Mrs Gleeson had called in the representatives on their own in order to mention that she knew Mr Whitty, the Union’s Director of Legal Services and author of the letter of 17th December 1998.   She plainly expected that he would be a witness.   Both sides agreed that she could and should continue to deal with the case.   It transpired that the Union was not calling Mr Whitty, who was on holiday, nor was applying for an adjournment.   There was some discussion as to the merits of the case and, in circumstances which the parties dispute, a concession was made by Mr Smith on the Union’s behalf.   The concession was seen by the Tribunal as disposing of the case and without any evidence being given the Tribunal indicated (to use Mr Ibekwe’s language) that it was minded to make a declaration that the Applicants had been excluded from membership of the Respondent Union in contravention of section 174.   Mr Ibekwe, after seeking instructions, agreed to such a declaration being made.   He applied for costs on the ground that the concession could have been made earlier, but was unsuccessful.   Presumably Mrs Gleeson then announced orally that the declaration to which Mr Ibekwe had agreed was made.
11.	On 10th August 1999 the Tribunal’s decision, with Summary Reasons, was promulgated.   We do not have a copy of either.   On 20th August 1999 the Union requested Extended Reasons, which were sent to the parties on 27th September 1999.
12.	The decision, which was unanimous, was that the IT1s were well-founded and that by Mr Whitty’s letter of 17th December the Union had, in breach of section 174, unlawfully excluded all of the applicants from its membership.   The Extended Reasons referred to the letters of 24th November and 17th December, from which we have cited above, and stated that it was common ground that at the date of the earlier letter all the applicants had been members of the Union.   The Reasons mentioned that the Union’s IT3 had asserted there had been a misapprehension but continued:-
“5.	....... Nevertheless, the effect of the letters was to refuse information to the applicants as they were allegedly not members of the respondent Union.
6.	Mr Smith for the respondent conceded at the hearing of the originating application that the words used amounted to exclusion from the Union.   .....
7.	..........
8.	......... Mr Smith for the respondent, having been given time to contact Mr Whitty personally, returned to the Tribunal with instructions to concede that there had indeed been a breach of s. 174 ..... in that the applicants were told by Mr Whitty that they were not members of the union, and [were] refused information by him on that basis.
9.	The Tribunal and the applicants agreed with that analysis, and the declaration was made accordingly.”
The Tribunal’s decision is not described as made by consent.
13.	On 29th October 1999 the Union lodged a Notice of Appeal.   It asserted that Mrs Gleeson had pressurised Mr Smith into making a concession and had then relied on the concession to conclude, wrongly, that there had been an exclusion within the meaning of section 174.   That led to evidence from both sides, as we have mentioned, and to Notes and Comments from the Chairman.   We do not find it necessary, even were it possible, to resolve the many disputes on the facts but in fairness to Mrs Gleeson we record that she rejects “most strongly” the allegation that Mr Smith was bullied into his concession.   We do not find it necessary to resolve the disputes of fact because, in our view, the Tribunal’s decision that there was an “exclusion” for the purposes of section 174 was in error of law.
14.	There are a number of reasons for that.   Firstly, given the Tribunal’s view that all applicants were, as a matter of common ground, members of the Union as at 24th November 1998, the only event that could have been relied on (concession apart) to amount to an exclusion could only have been the sentence in the letter of 17th December that “I .... note that you are not a member of this Union.”.   It is quite impossible to read that on its own as a rejection of some one trying to join the Union.   It thus could not found a view that there had been an exclusion in the NACODS sense.   It might or might not have been a refusal to offer to Mr Nicolaou the full services or facilities generally offered by the Union to its members.   That would have depended on a close study of what Mr Nicolaou was asking and whether what he was asking for was such as was generally afforded by the Union to its members but no such study was made and in any event one has to remember the distinction, underlined in NACODS supra between a failure to give services and an exclusion from membership.
15.	Secondly, it is far from clear whether Mr Smith did concede there had been an exclusion.   The Chairman’s brief note was that he conceded breach of section 174.   Her further comment was that he “indicated he was instructed to conceded the breach of s. 174 (1), and he did so”.   Mr Ibekwe’s affidavit describes Mr Smith conceding breach of section 174, with Mr Smith adding “it was therefore up to the Tribunal which way they chose to read it”.   True it is that Mr Smith’s own evidence is that:-
“.... I was prepared to concede the point but limited to a bare declaration that the Applicants had been excluded but not expelled”
but Mr Ibekwe’s affidavit is much fuller and is described by the Chairman as a clear and accurate record of the proceedings and that has the Chairman asking whether it was exclusion or expulsion to which the concession related and with Mr Smith indicating, as we have cited, that it was up to the Tribunal which way they chose to read it.   Of the two different versions of the concession in the Extended Reasons, that in para 8 - that there had been a breach of section 174 - is, on balance, to be preferred to that in para 6 - that the words used amounted to exclusion.   On that basis there was no concession of an exclusion.
16.	Thirdly, even if there had been a concession of an exclusion, it was plainly based only on the letter of 17th December and the Tribunal should not have accepted it, particularly from a layman (even one with a 19 year old degree in law).   It is, as we have already indicated, quite impossible to read that letter as a refusal or failure to admit an individual into membership of the Union.
17.	Fourthly, if there had been, as it seems there was, a concession that there had been some breach of section 174, the Tribunal could only have declared, as they did, that there had been an exclusion, if some reason existed judicially to choose exclusion over the apparent alternative, expulsion.   The fact that nothing pointed to expulsion, or, as its seems, the fact that at that point expulsion was not formally claimed could not, of itself, properly justify a finding of exclusion as the inappropriateness of expulsion did not necessarily point to a finding of exclusion as it should at least equally have emphasised that the concession of some breach of section 174 was not one proper to be accepted by the Tribunal.   After all, the Union’s letter of 24th February confirmed there had been neither an exclusion nor an expulsion.   Included amongst a Tribunal’s duties is the testing of whether a concession, especially one made by a layman, is proper to be accepted.   If the Tribunal here had directed its mind to that it could only have concluded, especially if it bore in mind the distinction between a refusal to offer full services and a refusal of membership, that Mr Smith’s concession could not be accepted as a concession that there had been an exclusion deriving from Mr Whitty’s letter of 17th December 1998.
18.	Once the concession, whatever it was, is undone, as it is, as an acceptable foundation for the Tribunal’s decision that there had been an exclusion, nothing else remains.   No evidence was heard.   We must therefore allow the appeal and set aside the decision.
19.	Two further issues remain.   Firstly, are we able to substitute our own view for that of the Tribunal and, secondly, is it a case for provision to be made for costs? 
20.	As to our substituting our own view, whilst, in the light of the Union’s letter of 24th February 1999 and the relatively short interval between that and the cause of complaint, the letter of 17th December 1998, the case would seem to represent a storm in a bitter and stale cup of tea, it may be that if evidence had been heard on 4th August 1999 some facts indicative of an exclusion or expulsion would have emerged.   We are bound to doubt that, especially given the need to distinguish between membership on the one hand and the services or incidents that may go with it on the other, but we cannot be sure that some true evidence of a breach of section 174 would not have emerged.   Accordingly, unless, as we would hope, the parties settle their differences within section 174, we think it appropriate to remit the whole matter to a different Tribunal to be heard afresh and without it being either burdened or facilitated by whatever concession Mr Smith made on 4th August 1999.
21.	As for costs, this subject came up towards the end of the hearing and both sides addressed us briefly although Mr Linden’s view was that the discussion was best left until after this judgment was released.   As for costs below, the Tribunal made no order and there is, we think,  neither an appeal nor a cross-appeal as to that.   As for the costs of this appeal, although we do not pretend to have heard all that could be said, we have so far heard nothing that in our view puts either side at fault in terms of Employment Appeal Tribunal Rule 34.   Thus our provisional view is that the discretion conferred by the rule does not even arise, let alone that a case for its exercise has appeared.   However, if either side or both wish to argue further as to costs, then we shall entertain such further argument if but only if submissions are made in writing and in accord with this timetable, namely that a party seeking an order for costs must apply in writing giving its reasons within 14 days from today (the date of the handing out of this judgment).   Where such application is made, the other side has 14 days to answer it, also in writing, with the applicant for costs then having 7 days to reply in writing.   Such submissions must not only be sent to the other side but to the EAT within the times prescribed.   Unless submissions on costs of this appeal are duly lodged within the times prescribed, our provisional view will obtain and we  shall make no order either way as to costs.