Appeal No.	 EAT/743/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MRS JUSTICE SMITH
MR D J HODGKINS CB
MR R SANDERSON OBE

MR R TYRRELL	APPELLANT

TRANSPORT & GENERAL WORKERS UNION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE APPELLANT	

	MRS JUSTICE SMITH:     This is an appeal from the decision of a Chairman of Industrial Tribunals sitting at Manchester on 5 March 1998.  The decision was that the Appellant’s Originating Application was out of time and stood dismissed.  

	The background to this matter is somewhat complicated.  It appears that the Appellant was for many years employed by the Ministry of Defence, but unfortunately he became ill and after a prolonged absence from work the employers terminated his employment.  With the assistance of his trade union, the TGWU, the Respondents to this appeal, he made a complaint of unfair dismissal.  As the result of advice which he received from the union and its lawyers, he entered into an agreement with the MOD by which terms of settlement were arranged.  At the end of February 1997 he signed form COT 3.  That was countersigned by the Respondents and a few days later the proceedings, which were in the Leeds Industrial Tribunal, were stayed on the basis of the settlement having been completed through ACAS and enshrined in form COT 3.  

	Soon after that settlement had been agreed, the Appellant appears to have regretted the decision and he made a complaint to the Respondent union about the actions of the officer who had advised him, Mr Long.  The Respondent union investigated the complaint and rejected it by letter dated 22 May 1997.  The Appellant was dissatisfied and in December 1997 he filed a complaint at the Industrial Tribunal, the legal basis of which was not entirely clear, but which appears to be under section 64 of the Trade Union & Labour Relations (Consolidation) Act 1992.  In effect, this was a complaint about the way in which his trade union had treated him.  The Tribunal Chairman, in the decision presently under appeal, was uncertain as to whether section 64 could be applicable to the complaint which the Appellant wished to raise, but nonetheless, it was clear that that was the section under which he sought to proceed.  Second, the Appellant sought to make a complaint of breach of contract.  However, on enquiry, it was clear that he was not suggesting that he had a contract of employment with the Transport & General Workers Union and that, therefore, there was no basis upon which he could seek a remedy for breach of contract within the Industrial Tribunal system.  Third, by letter dated 14 February 1998, the Appellant sought to raise a claim under the Disability Discrimination Act 1995, saying that he believed that Mr Davey, a full-time official of the Respondent union and his staff, had knowingly taken advantage of the Appellant’s disability, which is a depressive illness, and had used it to the union’s advantage to put pressure on him to accept their advice.  In so doing they had discriminated against him on the ground of his disability.  The Tribunal Chairman perceived that complaint to relate to the time at which the union officials had given advice about the settlement of the claim within his first Originating Application.  The Chairman appears to have treated that application as an amendment to the IT1 of December 1997.  

	The Chairman arranged a preliminary hearing at which he considered whether the two claims, that under section 64 of the 1992 Act and that under the Disability Discrimination Act, had been brought in time.  The requirement of the statute, in each case, was that the claim should be brought within three months of the act complained of.  The Chairman found that the union’s conduct, the subject of complaint, continued until 22 May 1997.  He perceived that it might be arguable that the conduct of the union had continued until July 1997, although he doubted it, but in any event he concluded that that was the latest date upon which the conduct of the union could be the subject of any complaint.  As the Originating Application had been presented in December 1997 it was out of time.  He considered whether it would have been reasonably practicable for the Appellant to have made the section 64 complaint within time and found that it would have been.  Similarly, in respect of the Disability Discrimination Act, the claim was prima facie out of time.  He considered whether it would be just and equitable to extend time and concluded that, on the basis of the information before him, it would not.  We note that the Appellant had not attended the hearing before the Chairman but had advanced his submissions in writing.  As a result of the conclusions to which we have just referred, the Chairman dismissed the Originating Application.

	The Appellant sought a review, mainly on the basis that he had not attended the hearing before the Chairman.  However, the review was refused with reasons.  In particular, we note that the Chairman recorded that there was no dispute that the Appellant had received a Notice of Hearing and had written saying that he would not attend the hearing, but enclosed his written submissions.

	At the preliminary hearing of this appeal, the Appellant has not attended.  We have been somewhat concerned about that, because he had indicated to the Employment Appeal Tribunal office that he intended to travel to London for this hearing.  Attempts have been made to telephone him at his home address and also on a mobile telephone number which he provided to the Employment Appeal Tribunal office.  The attempts to contact him have been unsuccessful.  We have considered whether we should continue with the preliminary hearing of the appeal in his absence and we have decided that we ought to do so.

	We have considered the written grounds advanced and have read copious documents, which have been put it at various times by the Appellant.  It is clear to us that the written grounds of appeal do not raise any point of law.  Ground (A) raises a point about the merits of his complaint against Mr Long and the trade union as to which we are not seized.  Ground (B) relates to his absence from the hearing before the Chairman.  That does not raise a point of law for the consideration of this Tribunal.

	In the event we must conclude that this appeal has no prospect of success and raises no arguable point of law.  It must therefore be dismissed at this preliminary stage.