Dan Cornel Nistor & Anor v Union of Shop, Distributive and Allied Workers (USDAW)

A trade union’s collective bargaining responsibilities do not ordinarily create a duty of care to individual members disadvantaged by collectively negotiated terms. A complaint that collective bargaining produces unequal outcomes is not, without more, a breach of fiduciary duty. Criminal offences under the Fraud Act 2006 and Bribery Act 2010 do not create civil causes of action. The Equality Act 2010 prohibits discrimination on specified protected grounds, not every difference in treatment, and claims within Part V fall within the jurisdiction of Employment Tribunals. A claim alleging that a union induced breach of contract must plead an identifiable contractual breach and the elements of the statutory tort. A claim may be struck out and summarily dismissed where its pleaded legal basis is hopeless and cannot be cured by amendment.

The claimants, two members of USDAW and former Tesco employees, challenged differences between the terms available to employees recruited before and after 2012, including retained pay and other collectively negotiated benefits. They alleged negligence, breach of fiduciary and statutory duties, breach of contract, discrimination, fraud, bribery and unlawful use of union funds.

USDAW applied under CPR rule 3.4(2) to strike out the claim and under CPR rule 24.3 for summary judgment. The central issues were whether the pleaded facts disclosed any legally viable claim against the union and whether any part of the claim had a real prospect of success.

1. Application allowed. The Claim Form and Particulars of Claim were struck out under CPR rule 3.4(2). Alternatively, judgment was entered for USDAW under CPR rule 24.3. The claim was also certified as totally without merit.
2. A trade union negotiating collectively should act broadly in the interests of its members as a whole and in accordance with members’ wishes as expressed through any ballot. That role is inconsistent with a duty of care to every individual member who may be disadvantaged by a particular collective agreement. Langley v GMB & Ors [2020] EWHC 3619 (QB), concerning an assumed responsibility in advising and representing a member in legal proceedings, was distinguishable.
3. The pleaded complaint did not identify disloyalty, bad faith, improper profit, conflict of interest or unauthorised benefit. It alleged only that collective agreements benefited some members more than others. That was not an arguable breach of fiduciary duty. The fiduciary concept requires loyalty; incompetence or an allegedly unfair outcome is insufficient. Bristol and West Building Society v Mothew [1998] Ch 1 was applied.
4. Sections 2 to 4 of the Fraud Act 2006 and the Bribery Act 2010 create criminal offences and no civil liability. The pleaded facts also failed to identify the elements of deceit described in Derry v Peek (1889) 14 App Cas 337.
5. Sections 39 and 57 of the Equality Act 2010 did not assist. Section 39 concerns employers; section 57 concerns trade organisations but requires discrimination because of a protected characteristic. The claim alleged only general inequality. Any claim under Part V would fall within Employment Tribunal jurisdiction under sections 114 and 120, and the proposed section 145 claim likewise had to be brought before an Employment Tribunal under section 146.
6. Section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992 could, in principle, apply to an inducement of breach of contract even outside the industrial-action context. But the claimants pleaded no contractual entitlement under the Six Book Agreement and identified no breach which USDAW had induced. The union’s Rule Book objective of promoting equal treatment did not promise identical terms for all members and did not prevent collectively negotiated differences.
7. Under CPR rule 3.4(2), the pleadings disclosed no reasonable grounds and constituted an abuse of process. Under CPR rule 24.3, the evidence also showed no real prospect of success and no compelling reason for a trial. Piepenbrock v Michell and others [2024] EWHC 544 (KB) was applied in distinguishing the pleading-based and evidence-based inquiries.
8. An extended civil restraint order was refused. Although the present claim was the second identified totally without merit claim or application, persistence had not yet been established. The court warned that a further totally without merit claim or application would make such an order highly likely. Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, [2019] 1 WLR 5892 was applied.