Appeal No. EAT/671/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11th January 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M E SUNDERLAND JP

	MR K GRAHAM CBE

NATIONAL ASSOCIATION OF LOCAL GOVERNMENT OFFICERS	APPELLANTS

LONDON BOROUGH OF BROMLEY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS A MORGAN
Of Counsel
Messrs Bruce Piper & Co
1 Mabledon Place
London
WC1H 9AJ

For the Respondents	MR P EPSTEIN
Of Counsel
The Solicitor
London Borough of Bromley
Bromley Civic Centre
Stockwell Close
Bromley
BR1 3UH

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was dated the 31st March 1991 NALGO (the Trade Union) applied to an Industrial Tribunal alleging that it had not received the appropriate 90 days' notice under the terms of the Employment Protection Act 1975 and was therefore seeking protective awards for the staff involved in a redundancy at the London Borough of Bromley.

	The Notice of Appearance given on behalf of the Borough raised three defences.  First of all it alleged that the sufficient 90 days' notice had been given.  Secondly, they raised the fact that consultation had begun several months earlier and had only been postponed.  Thirdly, that the numbers involved were not a hundred or more at one establishment, in that the redundancies had related to three separate establishments.

	It was quite clear that the course taken by the Industrial Tribunal was to consider the first defence and that it did not consider defences two and three.  If the Borough succeeded on number one, then it would be unnecessary for it to consider numbers two and three.

	The hearing took place on the 2nd October 1991 before an Industrial Tribunal sitting at Ashford in Kent under the Chairmanship of Mr de Saxe and the unanimous decision of the Industrial Tribunal was that the application was dismissed.

	The issue narrowed itself eventually to the question of whether delivery of a letter dated the 18th December 1990 had been made to the Staff Side Secretary, Mr Hawcock, at the Anne Springman House Civic Centre, Bromley. The offices of the Trade Union representatives were situated in that part of the offices of the Borough and a plan was before the Industrial Tribunal.  That plan showed rooms which were numbered A36, A37, A39 and a room off Room A39, where the NALGO Branch Secretary worked.

	A Mr Dearing was the Secretary of the employee side, the Manuals, and Mr Hawcock was the Secretary of the Staff Side Officers.

	The facts were set out by the Tribunal as follows, and it is as well that we restrict ourselves and follow very closely the succinct findings of the Tribunal itself.  They found that on the 17th December 1990 the Social Service and Housing Committee of the Borough resolved to award contracts for the management of three old peoples' homes to outside contractors, and those contracts were to come into effect on the 20th March 1991.  That decision involved, in total, over 100 members.  The 90 day consultation had to begin, therefore, not later than the 20th December.  Mr Smith was the Assistant Director of Social Services and he dictated a letter both to Mr Hawcock, and to Mr Dearing.  The letter was to be accompanied by a number of copies of a report, which was presented to the Social Services Committee and also a list of those involved in the possible redundancies.  So that, there were two large envelopes (A4), prepared and evidence was given that into each envelope was put, in the case of Mr Hawcock, which is relevant to this appeal, twelve copies of that report and twelve copies of the lists involved together with the letter.  So far as Mr Dearing was concerned six copies of each of those documents.  We have seen the copies of the reports which are each some 20 pages or so, and so in the end one is dealing with two very bulky, sealed envelopes.  The normal way in which the correspondence is carried out between the Borough and the representatives of the trade unions is by internal mail;  it is put into the messenger's post room, it is collected and is delivered the next day.  But of course the more important letters are sent "by hand".  On this occasion it was decided to send these two letters "by hand" and it is clear from an endorsement on the letters, made in handwriting, that they were despatched "by hand" at 4.15 pm on the 19th.  If they had been sent by internal mail in the ordinary course of events they would have arrived the next morning at the two rooms A36 and A39 as we have already indicated.  However, the task of delivering those two envelopes was given to a temporary Clerical Officer, a Mr Lucas, who had never before delivered letters to Mr Hawcock.  He went over to those rooms.  He found Mr Dearing was present in A37 and delivered his envelope to Mr Dearing.  Mr Lucas then went across to A39 and what happened is described by the Tribunal thus, in paragraph 7:
"Mr Lucas then saw that Room A39, the room occupied by members of staff employed by NALGO, was open, and that there was a lady in there.  He approached her, and said he was looking for Mr Hawcock.  She said that Mr Hawcock was `not around' so Mr Lucas asked her if she would give Mr Hawcock the letter when he came back and she said that she would do so. Mr Lucas gave her the envelope containing the letter 2.118 and the reports and printouts, and was satisfied that he had delivered it to the best of his ability.  Mr Lucas was sure that he was not mistaken that he had given the letter to that lady.  He was clear that he had not put it in the internal mailing.  He did not ask for the lady's identity.  He subsequently came to know that the lady who usually sat at the desk was Mrs Marina Turner, but, confronted in Tribunal with Mrs Turner, he could not identify her as the lady to whom he had given the letter.  He could not describe the lady at all.  The only thing that he could remember was that the lady was middleaged, but nothing else.  He was in Room A39 for a very short time - about one minute."

Those are the essential findings of fact about the delivery of this letter.

	The relevant section, Section 99 of the Employment Protection Act 1975 provides, and I am not reading the actual text, that an employer proposing to dismiss as redundant an employee of a description in respect of which an independent trade union is recognised by him, shall consult about the dismissal, and he shall consult with representatives of that trade union.  Then, in subsection (2) the following appears:
"In this section and sections 100 and 101 below, `trade union representative' in relation to a trade union means an official or other person authorised to carry on collective bargaining with the employer in question by that trade union."

Then subsection (6) of Section 99 provides as follows:
"The information which is to be given to trade union representatives under this section shall be delivered to them, or sent by post to an address notified by them to the employer, or sent by post to the union at the address of its head or main office."

The point was raised by the learned Chairman during submissions as to whether the phrase in that subsection "delivered to them" imported a need for personal delivery to the trade union representatives as defined in Section 99 (2).  Mr Epstein, who appeared then for the Borough, and who appears for them as respondents before us today, submitted, and the Tribunal found that he was correct in so submitting, that it was sufficient to deliver the documents to someone with ostensible authority to receive them on behalf of the trade union representatives.  The Tribunal proceeded to find that the person, the lady in A39, did have such ostensible authority.  They deal with their findings of fact as follows in paragraph 15 and 16 of the decision.  In paragraph 15 they say:
"As we have said, we preferred the evidence of the witnesses for the respondents.  We find the following facts:-

(i)At about 4.15 pm on 19 December 1990, Mr Lucas delivered an envelope containing the letter 2.188 together with copies of the relevant report and computer printouts to the NALGO offices in Room A39 of Anne Springman House.

(ii)He gave the documents to a lady, whose identity has not been established.

(iii)That lady said that she would give the documents to Mr Hawcock.

(iv)Immediately before delivering the documents to Room A39, Mr Lucas had delivered letter 2.120 to Mr Dearing in Room A37.  Mr Dearing does not dispute receipt of that letter"

and that letter is in identical terms.  They go on in paragraph 16:
"In the circumstances, we are quite satisfied that Mr Lucas delivered the letter to Room A39 as he says.  We are particularly swayed by the fact that Mr Dearing received his letter safely.  It is not for us to speculate what became of the letter after delivery, or why it was not date-stamped until 31 December."

That is a reference there to a letter from Mr Hawcock to the Director of Social Services at the Civic Centre dated 29th January 1991, in which he indicates that the letter of the 18th December was found, together with the internal mailing, on the 31st December and date stamped on that date.

	The issue before us, therefore, is whether there was sufficient evidence before the Tribunal, and sufficient findings by the Tribunal upon which they could reach the conclusion that there had been proper delivery within Section 99(6).

	Miss Morgan has submitted that "the lady"  might have been anybody;  she might, or might not, have given the documents to Mr Hawcock, and that there was no holding out by Mr Hawcock of this lady as an agent with authority to accept service of documents on his behalf and that he was the Trade Union representative who was the relevant one under the Section.  She has referred us to three authorities.  It seems to us that the principle is most clearly set out in the judgment of Mr Justice Lush in a case called Galbraith and Grant, Limited v. Block [1922] 2 KBR 155.  The facts in that case were that the plaintiffs employed and paid a carrier to take a case of wine to the defendant's premises and to deliver it.  The driver employed by the carrier said:
"he delivered the goods at the defendant's premises at a side entrance to a man, and that some one on the premises signed the delivery sheet in the name of the defendant.  The defendant said that his premises were closed at the time when it was alleged that the wine was delivered, that he had never received the wine . . ."

So in dealing with that matter on page 157 Mr Justice Lush says this:
"It certainly appears to us that the learned judge decided the case on this view of the law - namely, that even though goods are delivered at the place at which the vendor is directed to deliver them, yet if an unauthorized person takes them and appropriates them to himself there has been no delivery, however reasonably the vendor's agent may have acted in hading the goods to the actual recipient of them."

That is very similar to the position in the present case, and he continues:
"If that is what the learned judge decided we cannot agree with his view.  A vendor who is told to deliver goods at the purchaser's premises discharges his obligations if he delivers them there without negligence to a person apparently having authority to receive them.  He cannot know what authority the actual recipient has.  His duty is to deliver the goods at the proper place, and, of course, to take all proper care to see that no unauthorized person receives them.  He is under no obligation to do more.  If the purchaser has been unfortunate enough to have had access to his premises obtain by some apparently respectable person who takes his goods and signs for them in his absence, the loss must fall on him, and not on the innocent carrier or vendor."

The facts of these cases are not identical, but the principle there set out seems to us to be one that is applicable to the facts of this case.

	Now, what were the facts as found by the Industrial Tribunal?  Were they entitled to reach the conclusion here that Mr Lucas was entitled to take the view that he had, properly, delivered these documents to the Trade Union representative, Mr Hawcock?  

	First of all it is clear, although we have not referred to the passages, that there are three people, representatives of the Trade Union, who normally are in occupation of these rooms.  Mrs Turner, who is the Branch Clerical Officer and she is normally there five days a week from 9 am to 1 pm and she, when she finds post coming in, opens it and stamps it with a date stamp.  Then there is a Mr Clark, who is the Branch Administrator, he carries out the same procedures.  He was away, in fact on the 19th December, the date of delivery, from 11.15 am and he did not return until about 4.30;  that would have been after the delivery was found to have taken place of this document.  Then the third one is Mr Rooney, he was Branch Secretary, he had been in the office until about 4 pm on the 19th, 20th, 21st and 31st, he saw no sign of the envelope but he came in on the afternoon of the 31st and found the envelope on Mrs Turner's desk, he opened it and date stamped it.  So there were three people there who were available to see that document if it was delivered to that room and remained in that room.  As Miss Morgan, quite rightly, says "the lady" who was there might have taken it away with her and not delivered it back until the 31st December;  certainly, but in fact, Mr Rooney was there until about 4 o'clock on the 19th and he was also there on the 20th and 21st.

	So that it is a room occupied by three different members of NALGO staff who are entitled, and authorised, to accept the documents that are delivered there and served into that room.  Secondly, NALGO allowed some one to be in that office on her own and she was not apparently there without authority.  Thirdly, she was a person who knew Mr Hawcock and, on a later finding, was probably a retired member of NALGO.  Lastly, they were entitled to take the view, that Mr Lucas had made some enquiries and satisfied himself that by leaving the document there it would reach Mr Hawcock's hands.  They decided therefore, that there was a service of this document on the 19th at about 4.15 pm and therefore, that the subsection had been satisfied.

	However, Miss Morgan has raised and emphasised some of the very real problems which arise, and could arise, from the wording of subsection (6).  If it is read in its present form it is clear, as in the present case, that there may very well rise difficult questions of ostensible authority.  Whereas we have found that there is sufficient evidence here upon which the Tribunal could find ostensible authority, nevertheless, it does allow for difficulties and possible exacerbation of situations in the realm of industrial relations.  It seems to us that the wording of that subsection could very well be reconsidered with benefit to the whole of industry because it envisages at the moment personal delivery to trade union representatives or to those ostensibly authorised, or actually authorised, to accept on their behalf, or, secondly, sent by post to an address notified by them to the employer or sent by post to the Union at the address of its head or main office.

	As has been pointed out by the industrial members sitting with me, during submissions,  there may be types of businesses or occupations where trade union representatives may be out on the site;  they may not be in any particular place and it is important that they should be served and notified with important documents such as this where large redundancies are to be considered and it may very well be that personal delivery to them is desirable in that situation.  Then again, there may be addresses notified to the employer to which these notices could properly be sent and served.  Why should they not be sent "by hand"?  Why should they only be effective service when sent "by post"?  Indeed, there are many other aspects of this subsection which has caused this Appeal Tribunal some concern.  It seems that it needs possible reconsideration and tidying up.

	We have not, in that short criticism of the subsection, emphasised by any means all the many matters that have been raised during submissions before us, or indeed in our own deliberations before giving this judgment, but if one reads that subsection, one only has to read it to see that a number of problems could, very easily arise without any real fault on either side.  One of the objects of the judgments of this Court is to try to remove any sources of friction in industrial relations.  It seems to us that that subsection is one which in its present form might very well cause problems, as it has done in this present case, and we are grateful to Miss Morgan for the way she has put that forward and emphasised the problems which could very well exist.

	Our only issue here, is whether there was evidence upon which the Industrial Tribunal could properly find that there was here proper service and there was ostensible authority.  Looking at the Reasons as a whole, without taking it to pieces like a pleading, we are satisfied here that the Industrial Tribunal acted perfectly properly on the evidence and the proper inferences to be made from the evidence before them in finding that there was proper service.  In the circumstances therefore, this appeal must be dismissed.