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10/04/2003

Nottinghamshire Healthcare NHS v Prison Officers Association & Ors

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Employment Appeal Tribunal

The ratification of an originating application after the time limit for its issue had expired was effective if the application had legal effect at the time when it was issued.

Appeal by the respondent NHS Trust ('the Trust') from the decision of the Employment Tribunal, refusing an application to strike out an originating application by the Prison Officers Association ('the union'). In September 2000, The Trust decided to change the shift patterns of its workforce who were members of the union. A number of employees’ contracts were terminated and new contracts offered incorporating the new shift patterns. The contracts of the remaining employees were unilaterally varied. The union objected to the new shift patterns and in particular, did not accept that its members’ working hours could be changed unilaterally. Blank originating applications were sent to all its members. Some members consented to the initiation of proceedings, others declined and the rest failed to respond. Rather than allowing the claims of all its members to lapse through waiting for those who had failed to respond, the union issued one originating application ('the application') in respect of all its members. The union subsequently sought to ratify the application. The Trust argued that the application ought to be struck out on the basis that it had been issued without authority. The Employment Tribunal took the view that members who had consented to the application, either before or after issue, had ratified the application and that their claims were valid. The Trust appealed submitting that: (i) the application had been issued without authority; (ii) the union's members could not ratify the application as the three-month time limit for issuing the application had expired and the application was therefore a nullity; and (iii) the initiation of the proceedings amounted to an abuse of process.

HELD: (1) Ratification was an election by a person to adopt a transaction purportedly entered into in his name or on his behalf but not in fact authorised by him at the time. Effective ratification was equivalent to antecedent authority and therefore had retrospective effect (Smith v Henniker-Major & Co (2002) 3 WLR 1848). There were certain exceptions to the application of that rule. In particular, where it was essential to the validity of an act, that the act be done within a certain time limit, the act could not be ratified after the expiration of that time limit (Bird v Brown (1850) 4 Exch. 786). (2) In Presentaciones Musicales SA v Secunda (1994) Ch 271, the Court of Appeal held that since a writ issued without authority was not a nullity, it could be ratified even after the expiration of the time limit. The majority distinguished Bird (supra) on the basis that it had no effect where the act done by the self-appointed agent, even though done without authority, had "legal effect" at the time when it was done (Bolton Partners v Lambert (1889) 41 Ch. D. 295 applied). (3) The issue of the application was not an abuse of process as it had legal effect at the time it was issued.
Appeal dismissed.

Adrienne Morgan instructed by Hempsons for the trust. Melanie Tether instructed by Lees Whitley for the union.
LTL 30/6/2003 (Unreported elsewhere)

LTL 30/6/2003 : [2003] ICR 1192

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